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NTEC - Policy, Regulation and Licensing - Post-unit assignment
The aims of this essay are to firstly set out then evaluate, compare and contrast two regulatory techniques used by the British government to control the UK nuclear industry.
The nuclear industry is one of the most heavily regulated in the UK; consequently there are many elements to the regulatory process that could be discussed in this essay. This essay considers just two of these techniques, the health and safety (H&S) licensing process and the government's H&S policies.
The regulatory elements are described in section 1, evaluated in section 2 and compared and contrasted in section 3.
Section 1 - Introduction to Regulatory Elements
1.1 Outline of Health and Safety (H&S) Licensing
The Health and Safety (H&S) Licensing process is set out in the Nuclear Installations Act 1965 (as amended) (NIA65). NIA65 is an act of parliament and so is classed as “hard law”; it has three main licensing objectives:
- To provide government control of specified nuclear activities.
- Impose specific duties on those allowed to carry out these specified nuclear activities.
- Set out compensation liabilities for the breach of these specific duties.
The process for obtaining a site licence is a comprehensive one; a detailed application has to be made to the nuclear branch of the Health and Safety Executive (HSE), the Nuclear Installations Inspectorate (NII), who will evaluate the application. A major part of the licence application is the demonstration that the nuclear facility is safe. To prove this many factors are studied in detail including the possibility of a nuclear accident. An analysis of fault sequences is performed leading to the calculation of the Design Basis Accidents (DBA's) for the specific nuclear installation. The DBA's are analysed on a pessimistic basis, hence assume the worst permitted configuration and availability of equipment. The aim of this process is to calculate the minimum safety standards for each of the possible fault sequences.
The NII also analyzes the possibility of an unauthorised release of radiation as well as the radiation dose expected to be routinely received by workers and members of the public. This ensures the licensees plans and standards not only satisfy H&S requirements but also achieve the principle of as low as reasonably practicable (ALARP).
The safety case set out in the licence application will also have to ensure compliance with the Health and Safely at Work Act 1974 (HSWA74), the Ionizing Radiation Regulations (IRRs) and the limits recommended by the International Commission on Radiological Protection (ICRP). The licence applicant must also prove to the NII that they are a fit and proper person to operate the nuclear site, that they have sufficient financial resources, adequate insurance, a proper management structure and a suitably trained workforce.
Licensing Objective 1, to provide government control of specified nuclear activities, is set out in Section 1 of NIA65 which states that:
“No person shall use any site for the purpose of installation or operation a nuclear reactor … or other installation unless a licence to do so has been granted in respect of that site by the Health and Safety Executive”
This is built upon by the Nuclear Installations Regulations 1971 (NIR71), which specifically sets out the activities that require a license. In broad terms NIR71 states that spent fuel and reprocessing facilities require a licence but does not cover other nuclear activities such as nuclear medicine in hospitals. It is worth noting that activities involving radioactive material that do not require a licence would be primarily regulated by the environmental agency (EA) under the authority of the Radioactive Substances Act 1993.
Possibly put list here if need words.
Licensing Objective 2 aims to impose specific duties on those allowed to carry out licensed activities, this is set out in NIA65 sections 7 (Duty of licensee of licensed site) and 11 (Duty of person causing nuclear matter to be carried). [Possibility put in what some duties are and how they are enforced and penalties for breaching them]
Further control of the licensee is exercised as the NII may impose a wide range of conditions on the site licence under NIA65 section 4. The NII has specified 36 standard site licence conditions in the HSE paper Nuclear Site Licence Conditions, all of which are incorporated into all nuclear site licences, these conditions where last reviewed in 1999.
Licensing Objective 3 aims to set out compensation liabilities for the breach of duties imposed by the Act and is laid down in NIA65 sections 12 to section 21. This piece of legislation is the UK's implementation of the OCED instrument the Paris Convention on Nuclear Third Party Liability 1960 of which the UK is a signatory.
1.2 Outline of Government (Nuclear) Health and Safety Policy
Government policy is a broad concept, therefore a clear way of defining what exactly is policy is essential. A common way of doing this is to ask whether a particular document is used to guide practice, if it is then it can be generally be classed as policy.
Government policy is not legally binding so is classed as “soft law”, which build upon “hard laws” such as acts of parliament, but even thought it is not binding it does have a great deal of influence on everyday practice.
The key policy document relating to H&S in the nuclear industry is the HSE paper “The tolerability of risk from nuclear power stations (1988, revised 1992)”. This has been updated by the HSE paper “Reducing Risk Protecting People, (R2P2) 2001”. Both of these documents have a large impact on practice so can be most definitely classed as policy.
The 1988 HSE paper came about the recommendations made by Sir Frank Layfield after the Sizewell B public inquiry in 1986 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 tolerability paper concerns the tolerability, burden and acceptability of risk society can bear in exchange for the benefits offered by a nuclear industry and sets out to compare many different types of risk from activities that are part of life. The tolerability paper has attracted world-wide attention as it was at the time the paper was published a pioneer in this new approach to the idea of public perception of the tolerability of risk associated with industry.
In paragraph 10 of the tolerably paper the key differences between tolerability and acceptability are set out.
“ ‘Tolerability does not mean acceptability'. It refers to a willingness to live with a risk so as to secure certain benefits and in the confidence that is being properly controlled. To tolerate as risk means that we do not regard it as negligible or something we might ignore, but rather as something we might ignore, built rather as something we need to keep under review and reduce still further if and as we can. For a risk to be ‘acceptable' on the other hand means that for purposes of life or work, we are prepared to take it pretty well as it is.”
An example of tolerable risk is the risk of a failure of the containment vessel of a nuclear reactor leading to the release of radioactive materials and the consequent risk of associated health problems. This is a risk that a society would need to bare in order to benefit from the electricity of any nuclear reactor. An example of an acceptable risk is the risk of being hit by lightening, which is largely regarded as negligible by society and is not constantly reviewed.
The key practice that stems from the tolerability paper is the definition of a level of risk where regulatory interest no longer applies, the broadly acceptable region. The conditions to be in this broadly acceptable region are that:
“the risk is truly negligible in comparison with other risks that that the individual or society runs”
Also that assurances have been made that it will remain below this level and that the risk has been optimised, meaning that ALARP has been applied. ALARP always applies so even is the risk is below the broadly acceptable region as H&S policy requires risk to always be reduced further if there are no major economic, technological or practical barriers to doing so. In other words the employer has duty to:
“spend up to the point where further expenditure would be grossly disproportionate to the risk…”
In paragraph 175 of the tolerability paper the level of risk which could be deemed broadly acceptable is discussed:
“This level might be taken to be 1 in a million (1 in 10 ) per annum bearing in mind the very small addition this would involve to the ordinary risks of life…”
Which is comparable to the risk of death from a fire or gas explosion at home. It is worth noting that this level of risk is about a hundred times less than the annual average risk of dying in a traffic accident.
Paragraph 175 of the tolerability paper also states that:
“An annual risk of 1 in a million is of course not altogether negligible … But it is a level of risk which, provided there is a benefit to be gained, and proper precautions are taken, does not worry us or cause us to alter our ordinary behaviour in any way.”
[Look at unacceptable region]
The H&S policy on the tolerability of risk follows the ICRPs principles laid out in ICRP publication 60 (ICRP 1991), these are the principles of justification, optimisation and dose limits.
The H&S achieves justification through the licensing process which requires safety cases to be produced. The safety cases are used to justify the activity at all stages in its life cycle.
Optimisation is set out in SAP fundamental principle 3, which states that:
“Protection must be optimized to provide the highest level of safety that is reasonably practicable.”
In other words the ALARP principle must be applied at all times.
The dose limit approach is set out in SAP fundamental principle 5, which states that:
“Measures for controlling radiation risks must ensure that no individual bears an unacceptable risk of harm.”
In practice this is ensured by enforcing the dose limits set out in the Ionizing Radiation Regulations, which are based on ICRP Publication 60.
To assist the NII with the licence application process, as described in section 1.1, each application is assessed using a set of safety assessment principals (SAPs) that have been developed by the NII since 1979. The latest SAPs are set out in the HSE publication Safety Assessment Principles for Nuclear Facilities 2006 and include eight fundamental principles, along with a number of other principle categories such as “Leadership and Management for Safety” and “The Regulatory Assessment of Safety Cases”. The NII also uses supporting Technical Assessment Guides (TAGs).
Section 2 - Effectiveness, value and cost of the Regulatory Techniques
2.1 Effectiveness, value and cost of Health and Safety (H&S) Licensing
The fact that, to common knowledge, no organisation has ever carried out activities that require a NIA65 licence without such a licence shows clearly that licensing is highly effective in its goal of controlling specified nuclear activities.
Licensing is also effective in imposing duties as it sets out clearly the requirements of the licensee in the license conditions. However in practice these conditions are often broken. These breach of conditions are normally unintentional but are still an offence under HSWA74 and in theory the NII could prosecute for every such breach of conditions, however in practice the NII normally only prosecutes when,
“employers or others concerned appeared deliberately to have disregarded the relevant regulation or where they have been reckless in exposing people to hazards or where there is a record of repeated infringements.”
The fact that the NII does not prosecute for small such breach of conditions is necessary to avoid the overburdening of both the NIIs and the industries resources and but fundamentally is a shortfall in the effectiveness of licensing.
However the effectiveness of licensing is clear when serious incidents are considered, serious as defined as level 3 or above on the international nuclear events scale (INES). A recent example of an INES level 3 event where the NII prosecuted occurred in June 2006. The British Nuclear Group pleaded guilt to three counts of breaching the site licence conditions attached to its Sellafield site licence, granted under the NIA65, due to a large leak in its nuclear reprocessing plant. Even though there was no release of radioactive materials into the environment and there was no evidence of any harm to workers or the public the company was fined £500 000 with £68 000 of costs.
The liability provisions of NIA65 have been tested in the courts. Three key cases, each setting a precedent, have revolved around the interpretation of the word “damage” as used in NIA65 Section 7(1) which imposes a duty upon the licensee to ensure that:
“(a) no such occurrence involving nuclear matter …. causes injury or damage to any property of any person other than the licensee”
Such damage can be compensated for under NIA65 section 12.
The first important case to test NIA65 was Merlin v BNF plc , where damages were sort due to the economic loss that resulted from the fall in value of the plaintiffs house. The plaintiff claimed that this fall in value was due to the stigma of radioactive dust, from the defendant's licensed site being discovered in his property. In this case the judge ruled in the defendants favour as he did not extend damage to mean economic loss. This precedent was not applied in the case of Blue Circle v MOD where marsh land on an estate had been damaged by overflow of ponds, containing radioactive materials, during a storm. The judge ruled in the plaintiffs favour, as he decided the marsh had been damaged due to the fact that the soil had to be removed, and damages for economic loss were awarded. The precedent set in Blue Circle v MOD was upheld in the case of Mangnohard Ltd and Others v UKAEA and SEPA where radioactive particles from the respondent's nuclear licensed site had and continued to wash up on the petitioner's beach. The judge upheld that the beach had been damaged because, among other things, sand had to be removed from the beach, a legal statement that the beach had been damage under the terms of NIA65 was provided but damages were not sort. This example is an ongoing test of the NIA65, to date no further action has been taken in the courts but it may do so in the future.
The fact that the generalness of NIA65 has lead to the cases referenced can be considered as both a failing and strength of the H&S licensing process. The general nature of the word damage ensures a wide potential responsibility of the licensee, but could be criticized for its vagueness. The general modern trend in British courts to move away from the literal rule of interpretation toward a golden (purposive) rule, meaning that the original intentions of the act are given more consideration, could further increases the liability of any licensee.