Statutory Instruments
ATOMIC ENERGY AND RADIOACTIVE SUBSTANCES
Made
2nd December 1993
Laid before Parliament
10th December 1993
Coming into force
1st January 1994
The Secretary of State, in exercise of the powers conferred on him by section 2(2) of the European Communities Act 1972(1), being a Minister designated(2) for the purposes of that subsection in relation to the regulation and control of the transit, import and export of waste (including recyclable materials) and in relation to anything supplemental or related to those matters, hereby makes the following Regulations:
1. These Regulations, which extend to the United Kingdom, may be cited as the Transfrontier Shipment of Radioactive Waste Regulations 1993 and shall come into force on 1st January 1994.
2.—(1) In these Regulations, unless the context otherwise requires—
“appropriate standard document” for any purpose means the standard document prepared for that purpose in accordance with the procedure laid down in Article 19 of the Directive;
“approval”, in regulations 7(5), 13(2)(b)(ii) and 15(1), means an approval under Article 6(1) of the Directive (or under that Article as applied by any other provision of the Directive), and “necessary”, in relation to such an approval, means necessary by virtue of any provision of the Directive;
“authorisation”, in Part II of these Regulations, means an authorisation under regulation 7(5);
“authorisation”, in regulations 10(a), 13(2)(b)(ii) and 15(1), means authorisation for a shipment granted by a Member State under Article 7 or 12(2) of the Directive (or under Article 7 as applied by any other provision of the Directive);
“chief inspector” means—
in relation to a shipment taking place in England and Wales and in no other part of the United Kingdom, the chief inspector for England and Wales appointed under section 4(2)(a) of the 1993 Act;
in relation to a shipment taking place in Scotland and in no other part of the United Kingdom, the chief inspector for Scotland appointed under section 4(2)(b) of the 1993 Act;
in relation to a shipment taking place in Northern Ireland and in no other part of the United Kingdom, the chief inspector for Northern Ireland appointed under section 4(7) of the 1993 Act; and
in relation to a shipment taking place in two or more of the territories of England and Wales, Scotland or Northern Ireland, the proper authority determined in accordance with paragraph (2);
“the Community” means the European Atomic Energy Community;
“competent authorities”, in relation to a country, means the authorities which, under the law or regulations of that country, are empowered to implement the system of supervision and control defined in Titles I to IV of the Directive, and which, in the case of a Member State, have been designated as such in accordance with Article 17 of the Directive;
“consignee” means a person to whom radioactive waste is shipped;
“country of despatch” has the same meaning as in the Directive;
“country of transit” means a country, whether a Member State or a third country, other than the country of origin and the country of destination, through which a shipment of radioactive waste is, or is to be, transported;
“the Directive” means Council Directive 92/3/Euratom(3) on the supervision and control of shipments of radioactive waste between Member States and into and out of the Community;
“holder” means any person who, before carrying out a shipment, has the legal responsibility for the radioactive waste to be shipped and intends to carry out or arrange for shipment to a consignee;
“place of origin” and “place of destination” mean places situated in two different countries, either Member States or third countries, and those countries are respectively called “the country of origin” and “the country of destination”;
“radioactive waste” means any material which contains or is contaminated by radionuclides and for which no use is foreseen;
“sealed source” has the meaning given to it by Article 1(c) of Council Directive 80/836/Euratom(4);
“shipment” means transport operations from the place of origin to the place of destination, including loading and unloading, of radioactive waste;
“the 1993 Act” means the Radioactive Substances Act 1993(5);
“third country” means a country that is not a member of the Community; and
“transporter” has the same meaning as it has in the Directive.
(2) For the purpose of paragraph (d) of the definition of “chief inspector” in paragraph (1), where a shipment takes place in more than one of the territories of England and Wales, Scotland or Northern Ireland, the proper authority shall be—
(a)in the case of a shipment to a place of destination in the United Kingdom, the chief inspector appointed under the 1993 Act for the territory in which the place of destination is situated;
(b)in the case of a shipment from a place of origin in the United Kingdom, the chief inspector appointed under the 1993 Act for the territory in which the place of origin is situated; and
(c)in the case of a shipment where the United Kingdom is a country of transit, the chief inspector appointed under the 1993 Act for the territory in which the point of entry into the United Kingdom is situated.
(3) The chief inspector may, to any extent, delegate his functions under these Regulations to any other inspector appointed under section 4 of the 1993 Act.
3.—(1) These Regulations apply to shipments between Member States, and into and out of the Community, other than—
(a)shipments where the quantities and concentration of the radioactive waste do not exceed the levels laid down in Article 4(a) and (b) of Directive 80/836/Euratom; and
(b)shipments where a sealed source (other than one containing fissile material) is returned by its user to the supplier of the source in another country.
(2) Transport operations necessary for any shipment to which these Regulations apply shall comply with Community and national provisions and with international agreements on the transport of radioactive material.
4.—(1) Subject to paragraphs (2) to (4), the provisions of these Regulations shall bind the Crown.
(2) No contravention by the Crown of any provision of these Regulations shall make the Crown criminally liable; but the High Court or, in Scotland, the Court of Session may, on the application of the chief inspector, declare unlawful any act or omission of the Crown which constitutes such a contravention.
(3) Notwithstanding anything in paragraph (2), the provisions of these Regulations shall apply to persons in the public service of the Crown as they apply to other persons.
(4) In the application of this regulation to Northern Ireland references to the Crown shall include references to the Crown in right of Her Majesty’s Government in Northern Ireland.
(5) The requirements of these Regulations shall not have effect to the extent that in any particular case they would, in the opinion of the Secretary of State for Defence, be against the interests of national security.
5. Subject to regulation 3(1), this Part applies to the following shipments—
(a)shipments of radioactive waste from a place of origin in the United Kingdom to a place of destination in another country, whether another Member State or a third country;
(b)shipments whereby such waste is to be imported into the Community from a third country and the country of destination is the United Kingdom; and
(c)shipments whereby such waste is to enter the Community from a third country and the country of destination is not a Member State and the United Kingdom is the Member State in whose territory the waste is first to enter the Community.
6. No person shall carry out in the United Kingdom a shipment to which this Part applies except where the shipment is carried out under, and in accordance with the conditions and requirements contained in, an authorisation granted by the chief inspector.
7.—(1) An application for an authorisation shall be submitted, using the appropriate standard document, to the chief inspector—
(a)in the case of a shipment to which this Part applies by virtue of regulation 5(a), by the holder who intends to carry out the shipment or to arrange for the shipment to be carried out;
(b)in the case of a shipment to which this Part applies by virtue of regulation 5(b), by the intended consignee; and
(c)in the case of a shipment to which this Part applies by virtue of regulation 5(c),by the person who has the responsibility for managing the shipment within the United Kingdom.
(2) An application may be submitted in respect of more than one shipment if—
(a)the radioactive waste to which it relates essentially has the same physical, chemical and radioactive characteristics;
(b)the shipments are to be made from the same holder to the same consignee and involve the same competent authorities; and
(c)in the case of shipments which involve third countries, the transit is via the same frontier post of entry to or exit from the Community and via the same frontier post of the third country or countries concerned, unless otherwise agreed between the competent authorities concerned.
(3) On receipt of an application made under paragraph (1), the chief inspector shall send the application for approval to the competent authorities of each country, other than the United Kingdom, which, in relation to the proposed shipment, is either the country of origin or destination, or a country of transit, using the appropriate standard document, but the sending of the application for approval shall in no way affect the subsequent decision under paragraph (5).
(4) Where—
(a)this Part applies to a shipment by virtue of regulation 5(a) and the place of originis within a nuclear site, or
(b)this Part applies to a shipment by virtue of regulation 5(b) and the place ofdestination is within a nuclear site, the chief inspector shall, upon receipt of an application made under paragraph (1), consult the Health and Safety Executive by sending to them a copy of the application and, before granting an authorisation, the chief inspector shall consider any representations made to him about the application by the Executive during such period as may be specified by the chief inspector when copying the application to the Executive or such other period as the chief inspector and the Executive may agree in writing.
(5) Subject to regulation 8, if all the approvals necessary for the shipment in question have been granted, the chief inspector shall be entitled to grant an authorisation, to ship the radioactive waste, to the person who made the application and, using the appropriate standard document, the chief inspector shall inform the competent authorities of each country, other than the United Kingdom, which is either the country of origin or destination, or a country of transit.
(6) For the purposes of paragraph (5), an approval shall be deemed to have been granted where no reply has been received from the competent authorities of a country, to whom an application has been sent for approval under paragraph (3), prior to the expiry of the period of two months from their having received it or, where they have requested a further period of not more than one month for making their position known, prior to the expiry of that further period, unless they have informed the Commission of the Communities in accordance with Article 17 of the Directive that they do not accept this automatic approval procedure in general.
(7) Where the chief inspector grants an authorisation—
(a)he shall use the appropriate standard document; and
(b)he shall attach to the document any additional requirements which apply inrelation to the shipment.
(8) An authorisation shall be valid for such period not exceeding three years as shall be specified in the authorisation.
(9) The granting of an authorisation shall not in any way affect the responsibility of the holder, the transporter, the owner, the consignee or any other person involved in the shipment.
(10) In this regulation, “nuclear site”means—
(a)any site in respect of which a nuclear site licence is for the time being in force, or
(b)any site in respect of which, after the revocation or surrender of a nuclear site licence, the period of responsibility of the licensee has not come to an end, and “nuclear site licence”, “licensee” and “period of responsibility” have the same meaning as in the Nuclear Installations Act 1965(6).
8.—(1) The chief inspector shall not grant an authorisation for a shipment—
(a)either—
(i)to a destination south of latitude 60 degrees south; or
(ii)subject to regulation 12 (return of material after processing or reprocessing), to a State party to the Fourth ACP-EEC Convention(7) which is not a member of the Community; or
(b)to a third country which, in the opinion of the chief inspector, in accordance with the criteria referred to in Article 20 of the Directive, does not have the technical, legal or administrative resources to manage the radioactive waste safely.
(2) Where the chief inspector has granted an authorisation under regulation 7(5) for a shipment to which this Part applies by virtue of regulation 5(a), the holder shall be obliged to take the radioactive waste back if either—
(a)the shipment cannot be completed, or
(b)the conditions and requirements contained in the authorisation for the shipment are not complied with.
(3) Where this Part applies to a shipment by virtue of regulation 5(b), the chief inspector shall not grant an authorisation for the shipment unless he is satisfied that the consignee of the radioactive waste has negotiated a clause with the holder of the waste established in the country of origin obliging that holder to take back the waste where a shipment cannot be completed.
9.—(1) Where, in the case of a shipment to which this Part applies by virtue of regulation 5(a), and in respect of which the country of destination is a Member State, the chief inspector receives from the competent authorities of the country of destination a copy of the acknowledgment of receipt of the shipment sent in accordance with Article 9(2) of the Directive, he shall send a copy of that acknowledgment to the person who submitted, under regulation 7(1), the application for authorisation for that shipment.
(2) Where the country of destination of a shipment is a third country, and this Part applies to the shipment by virtue of regulation 5(a), the person who submitted, under regulation 7(1), the application for authorisation for that shipment shall, within two weeks of the date of its arrival, notify the chief inspector that the waste has reached its destination in the third country, and shall indicate the last customs post in the Community through which the shipment passed.
(3) The notification referred to in paragraph (2) shall be substantiated by a declaration or certification of the consignee of the radioactive waste stating that the waste has reached its proper destination and indicating the customs post of entry into the country of destination.
10. No person shall carry out in the United Kingdom a shipment to which these Regulations apply, not being a shipment to which Part II applies, except where the shipment is carried out under, and in accordance with, the conditions and requirements contained in—
(a)an authorisation granted by the competent authorities of the Member State entitled under the Directive to grant such authorisation; and
(b)an approval given under regulation 11 by the chief inspector.
11.—(1) Subject to paragraph (4), where in relation to a shipment the United Kingdom is the country of destination or a country of transit, the chief inspector shall, using the appropriate standard document, not later than two months after receipt of a duly completed application for approval from the competent authorities of the country responsible under Article 4 or 12(1) of the Directive (or under Article 4 as applied by any other provision of the Directive) for sending the same, notify those authorities of his approval of the shipment, or of any conditions which he requires to be attached to approval, or of his refusal to grant approval.
(2) Any conditions required by the chief inspector under paragraph (1) shall not be more stringent than those laid down for similar shipments wholly within the United Kingdom and must comply with existing international agreements.
(3) The chief inspector shall give reasons for attaching conditions to an approval, or for refusing an approval, in accordance with Article 3 of the Directive.
(4) The chief inspector may request a further period of not more than one month in addition to the period referred to in paragraph (1) to make his position known and, if he so requests, the time for giving notification under paragraph (1) of his reply shall be extended by that further period.
(5) Where the chief inspector fails to reply within the period set by this regulation to the competent authorities of a country who have sent him such an application for approval as is mentioned in paragraph (1) the chief inspector shall, for the purposes of regulation 17, be deemed to have notified those authorities that he refuses to grant approval for the shipment in question.
12.—(1) Where radioactive waste is to be exported to a Member State, or to an undertaking within a Member State, for processing, these Regulations do not affect the right of the Member State, or that undertaking, to return the waste after treatment to its country of origin.
(2) Where irradiated nuclear fuel is to be exported to a Member State, or to an undertaking within a Member State, for reprocessing, these Regulations do not affect the right of the Member State, or that undertaking, to return to its country of origin waste or other products of the reprocessing operation.
13.—(1) Where radioactive waste was to be exported for processing, or irradiated nuclear fuel exported for reprocessing, to a Member State, or to an undertaking in a Member State, and transit of the initial shipment was approved under regulation 11, the chief inspector may not refuse to approve reshipment under regulation 11 where that reshipment concerns the same material after treatment or reprocessing if all relevant legislation is respected.
(2) Where—
(a)in relation to a shipment, the country of despatch is a Member State; and
(b)either—
(i)the shipment cannot be completed, or
(ii)the conditions and requirements contained in the authorisation and necessary approvals for the shipment are not complied with; and
(c)transit of the initial shipment was approved under regulation 11, the chief inspector may not refuse to approve under regulation 11 reshipment of the radioactive waste in question to the holder of that waste in the Member State of despatch where the reshipment is undertaken on the same conditions, and with the same specifications, as the initial shipment.
(3) Where—
(a)a shipment from a third country to a country of destination which is a Member State cannot be completed; and
(b)transit of the initial shipment was approved under regulation 11, the chief inspector may not refuse to approve under regulation 11 reshipment of that waste to the holder of the waste established in the third country where the reshipment is undertaken on the same conditions, and with the same specifications, as the initial shipment.
14.—(1) Where, in relation to a shipment, the holder of the radioactive waste becomes obliged, by virtue of regulation 8(2), to take back the waste, the chief inspector shall ensure that the radioactive waste in question is taken back by the holder.
(2) Where a person has failed to comply with any obligation of his under regulation 8(2), the chief inspector may take proceedings in the High Court or, in Scotland, in any court of competent jurisdiction, for the purpose of securing compliance with the obligation.
(3) For the purposes of this regulation, “chief inspector” shall mean that one of the chief inspectors appointed under section 4 of the 1993 Act who granted authorisation for the shipment under regulation 7(5).
15.—(1) Without prejudice to any accompanying documents required under other relevant provisions, no person shall carry out a shipment to which these Regulations apply within the United Kingdom unless it is accompanied by the application made under the Directive for authorisation, the necessary approvals for the shipment and the authorisation or, where a shipment is made by rail, those documents are available to the chief inspector.
(2) Where, in relation to a shipment to which these Regulations apply, the United Kingdom is the country of destination, the consignee shall within 15 days of receipt of the radioactive waste send the chief inspector an acknowledgment of receipt using the appropriate standard document.
(3) Where the chief inspector receives an acknowledgment of receipt sent to him under paragraph (2), he shall send copies of that acknowledgment to the competent authorities of the other countries involved in the operation.
16.—(1) Subject to paragraph (2), the Secretary of State may, if he thinks fit in relation to any application for either an authorisation under Part II or an approval under regulation 11, give to the chief inspector directions as to—
(a)whether the application is to be granted or refused; or
(b)the conditions and requirements to which the authorisation or approval, if granted, is to be subject, and it shall be the duty of the chief inspector to give effect to the directions.
(2) A direction given by the Secretary of State under paragraph (1) shall be of no effect insofar as it requires the chief inspector to determine an application in a manner which is either contrary to, or not within the powers conferred upon him by, any of the provisions of these Regulations apart from this regulation.
17.—(1) Where, except in pursuance of a direction given by the Secretary of State under regulation 16, the chief inspector under these Regulations—
(a)refuses to grant an authorisation for which an application has been made under regulation 7(1); or
(b)grants such an authorisation subject to conditions or requirements; or
(c)notifies, under paragraph (1) of regulation 11, the competent authorities of a country who have sent him such an application for approval as is mentioned in that paragraph either that he refuses to grant approval for the shipment in question, or that he requires conditions to be attached to approval; or
(d)is deemed by virtue of regulation 11(5) to have refused to grant approval for a shipment, the person applying for the authorisation for that shipment may, subject to paragraphs (2) and (3), appeal to the Secretary of State.
(2) A person wishing to appeal under this regulation shall give written notice of appeal to the Secretary of State within the period specified in paragraph (3) (or such longer period as the Secretary of State may at any time allow).
(3) In the case of an appeal made by virtue of paragraph (1)(d) the period specified for the purposes of paragraph (2) is six months and, in any other case, is two months from the date on which the person entitled to make the appeal is notified that the authorisation or, as the case may be, the approval for the shipment is refused or, as the case may be, granted subject to conditions.
(4) Where by virtue of regulation 11(5) the chief inspector is deemed to have notified the competent authorities of a country that he refuses to grant approval for a shipment, he shall, for the purposes of paragraph (3), be deemed to have notified the person entitled to make the appeal of that refusal on the seventh day after the expiry of the period set for reply by regulation 11.
(5) If the appellant wishes to withdraw an appeal he shall do so by notifying the Secretary of State in writing.
(6) The appellant shall send to the Secretary of State with the notice of appeal an additional copy of the notice and two copies of—
(a)a full statement of his case;
(b)any relevant application;
(c)any authorisation or decision which is the subject matter of the appeal; and
(d)any correspondence or other documents relevant to the appeal, and the Secretary of State shall send one copy of the papers received by him to the chief inspector.
(7) Where an appeal is made to the Secretary of State he may—
(a)refer any matter involved in the appeal to a person appointed by him for that purpose;
(b)afford the appellant the opportunity of appearing before and being heard by a person appointed by him for that purpose and, in the event of the appellant choosing to take advantage of any such opportunity, the Secretary of State shall afford the same opportunity to the chief inspector.
(8) Any hearing afforded under paragraph (7)(b) may, if the person hearing the appeal so decides, be held, or held to any extent, in private.
(9) Subject to paragraph (10), on determining an appeal under this regulation the Secretary of State—
(a)may affirm the decision or deemed decision of the chief inspector;
(b)where the appeal is against the refusal or deemed refusal of the chief inspector to grant an authorisation or approval, may direct the chief inspector to grant the authorisation or approval;
(c)where the appeal is against the conditions or requirements subject to which the chief inspector granted an authorisation, or against the conditions which the chief inspector attached to a grant of an approval, may quash all or any of the conditions or requirements; and where he exercises any of the powers in sub-paragraphs (b) or (c), he may give directions to the chief inspector as to the conditions or requirements to be attached to the authorisation or approval, and the chief inspector shall give effect to any directions given to him by the Secretary of State under this paragraph.
(10) No direction given by the Secretary of State under paragraph (9) may require the chief inspector to take any action which would be either contrary to, or not within the powers conferred upon him by, any of the provisions of these Regulations apart from this regulation.
18.—(1) Any person who fails to comply with any provision of regulation 6, 8(2), 9(2), 10, 15(1) or (2) commits an offence.
(2) It is an offence for a person to make a statement which he knows to be false or misleading in a material particular, or recklessly to make a statement which is false or misleading in a material particular, where the statement is made—
(a)in purported compliance with a requirement to furnish any information imposed by or under any provision of these Regulations; or
(b)for the purpose of obtaining the grant under these Regulations of any authorisation or approval to, or for the benefit of, himself or any other person.
(3) Where the commission by any person of an offence under these Regulations is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of an offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.
(4) Where an offence under these Regulations which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to, any neglect on the part of a 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.
(5) Where the affairs of a body corporate are managed by its members, paragraph (4) shall apply in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(6) Where, in Scotland, an offence under these Regulations which has been committed by a partnership or an incorporated association (other than a partnership) is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a partner in the partnership or, as the case may be, a person concerned in the management or control of the association, he, as well as the partnership or association, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(7) A person who commits an offence under this regulation shall be liable on summary conviction to a fine not exceeding the statutory maximum, or on conviction on indictment to imprisonment for a term not exceeding two years, or a fine, or both.
(8) In England and Wales, an inspector appointed under section 4 of the 1993 Act, if authorised to do so by the chief inspector, may, although not of counsel or a solicitor, prosecute before a magistrates' court proceedings for an offence under these Regulations.
John Selwyn Gummer
Principal Secretaries of State
Department of the Environment
2nd December 1993
(This note is not part of the Regulations)
These Regulations, which extend to the United Kingdom, implement Council Directive 92/3/Euratom on the supervision and control of shipments of radioactive waste between Member States and into and out of the Community (“the Directive”).The Regulations provide for a system of authorisation and approval for the shipment of radioactive waste.
Regulations 6 and 10 prohibit shipment of radioactive waste from, to or through the United Kingdom except under an authorisation granted by the chief inspector designated for the purpose (being one of the chief inspectors appointed under section 4 of the Radioactive Substances Act 1993) or, where the authorisation is to be granted by the competent authorities of another Member State, except in accordance with both such an authorisation and an approval for transit given by the chief inspector.
Regulations 7 and 11 provide for the granting of authorisations, and the giving of approvals, by the chief inspector, regulation 16 confers power upon the Secretary of State to give directions as to how individual applications for such authorisations or approvals are to be dealt with, and regulation 17 provides for appeals from decisions of the chief inspector. Regulation 8(1) restricts the authorisation of shipments to certain destinations and third countries, and regulation 8(3) prevents the authorisation of shipments from outside the Community to a destination in the United Kingdom where the sender has not agreed to take back the waste in the event of either the shipment not being completed or the terms of the authorisation being breached.Where waste is being exported from the United Kingdom, regulation 8(2) obliges the sender to take the waste back in certain circumstances, and regulation 14 requires the chief inspector to enforce such obligations.
Regulations 12 and 13 relate to reshipment operations.
Regulation 15 requires any shipment of radioactive waste whilst within the United Kingdom to be accompanied by the necessary approvals and authorisations required by these Regulations or the Directive, and provides for the consignee of a shipment to the United Kingdom to advise the chief inspector of receipt of the shipment.In the case of a shipment to a country outside the Community which began in, or entered the Community via, the United Kingdom, regulation 9(2) requires the responsible person in the United kingdom to inform the chief inspector of the arrival of the shipment at its destination.
Regulation 18 provides for offences.
Forms for applications required by these Regulations can be obtained from Her Majesty’s Inspectorate of Pollution, (The Transfrontier Shipment of Radioactive Waste Regulations 1993), Romney House, 43 Marsham Street, London SW1P 3EB or Her Majesty’s Industrial Pollution Inspectorate, Scottish Office Environment Department, 27 Perth Street, Edinburgh EH3 5RB or Radiochemical and Alkali Inspectorate, Department of the Environment for Northern Ireland, Calvert House, 23 Castle Place, Belfast BT1 1FY.
S.I. 1993/2661.
OJ No. L 35, 12.2.92, p. 24.
OJ No. L 246, 17.9.1980, p. 1.
The Fourth ACP-EEC Convention was signed at Lome on 15th December 1989.