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Carriage of Dangerous Goods (Amendment) Regulations 2019

Volume 796: debated on Tuesday 26 February 2019

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Carriage of Dangerous Goods (Amendment) Regulations 2019.

My Lords, this statutory instrument will change the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009. These regulate the transport of most dangerous goods in Great Britain, and this instrument will update the sections that deal specifically with radioactive materials.

The amendments in the instrument will strengthen Great Britain’s emergency preparedness and response arrangements for the transport of radioactive materials. They will apply to transport by rail, road and inland waterway. The changes in the instrument will bring Great Britain into step with the highest international safety standards, as they implement the emergency preparedness and response requirements of the Euratom basic safety standards directive 2013.

One of the amendments introduces provisions on the control of so-called volatile organic compounds resulting from the storage of petrol and its distribution from terminals to service stations. It corrects an unintended revocation of guidance for the design and construction of petrol tanks in respect of the control of such compounds. The other simply updates a cross-reference in the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008.

On that matter, I should like to point out that, in the debate in another place, concerns were raised about the drafting of this amendment. It was suggested that the 2008 regulations had been revoked and replaced by the Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2019, and that this amendment therefore constituted defective drafting, which would be fatal to the SI. I am happy to confirm that the amendment in question is legally sound, as the revocation and replacement of the 2008 regulations will take effect only if the UK leaves the EU on 29 March without a deal. In this unlikely event, the amendment would simply be null and void; its nullity would have no impact on the remaining provisions of these regulations.

The department held a joint consultation with the Ministry of Defence and the Health and Safety Executive on the changes made by this instrument. We published our response to the consultation in October last year. Of 71 respondents, 31 commented on the transport-specific elements of the consultation. I am happy to report that the proposals received broad support.

I shall now briefly outline the amendments made by this instrument. We have broadened the definition of “emergency” to include risks to quality of life, property and the environment. We have also updated the principles and purposes that duty holders are to have regard to when drafting emergency plans, to ensure that plans are flexible and proportionate. We are including in the regulations a definition of “emergency worker”, with comprehensive requirements for training. We are also expanding the requirement to regularly review and test emergency plans. For civil nuclear transport, the competent authority in Great Britain, currently the ONR, will have a duty to provide information to the public about the nature and effect of a potential radiation emergency.

These regulations will introduce a national reference level and will require the carrier and consigner of radioactive materials to ensure that the emergency plan prioritises keeping radiation exposure below that level. It was alleged in another place that these regulations do not take account of the circumstances under which an emergency worker may be exposed to a maximum dose of 500 milliSieverts; I can confirm that the regulations expressly state that such exposure is possible if this worker is engaged in activities for the purpose of saving human life and with their informed consent. The new regulations also include a duty to provide a handover report to assist the transition from an emergency exposure situation to the recovery phase.

As I have mentioned, Part 2 of the regulations makes a technical update to a cross-reference in the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations. Part 3 reinstates a previously revoked provision that implements an EU directive on volatile organic compound emissions resulting from the storage of petrol and its distribution. The impact of these changes will be minimal: the main burden will be any costs associated with familiarisation with the amendments and making any revisions to emergency plans. This will be a relatively minor, one-off cost. The other two changes included in this instrument, those on volatile organic compounds and transfrontier shipment of radioactive waste, are purely technical and will have no impact on industry. I beg to move.

My Lords, I thank the Minister again for his exemplary exposition. This is a most important instrument. I look at page 5, under “Interpretation of Part 1”, and I see the words “ionising radiations”, “dose consequences”, “endangered persons”, “exposure” and,

“‘emergency services’ means those police, fire and ambulance services that are likely to be required to respond to the radiation emergency”.

I support what the Minister proposes and I will not detain the Committee but I will give an insight.

Some of your Lordships may have heard of CP Snow, a novelist who ended up in your Lordships’ House and was at one time a Minister under a trade union leader who was a Cabinet Minister, Mr Cousins. As a novelist, CP Snow wrote a series of 11 novels, Strangers and Brothers. One—which I have read, as I have the others—is relevant to these regulations, in a historical sense if no other, and might be of interest to the Minister and his able colleagues in the department who brief him.

The novel in question is The New Men, which describes, clearly based on what had happened, the consequences of an individual receiving an unwanted dosage—that is, a radiation emergency, the words in the regulation. The novel is set in north-east Wales in the small village of Rhydymwyn, where the first steps of Britain’s attempt to make an atom bomb were taken under the cover of chemical substances that were possibly to be used in war. That small village is outside Mold, the county town of Flintshire, and I have always lived within eight or nine miles of it.

Snow describes the scientists who were transplanted from their dreaming spires and assisted by university men from Liverpool and Birmingham, to name but two centres inhabited by the scientists who were making, or attempting to make, our first bomb. Noble Lords may know that the attempts were ended and went lock, stock and barrel to Los Alamos in New Mexico. A former Member of the other place wrote a tract entitled How the Americans Stole Britain’s Bomb. That is not for me to describe further.

The novel that I have been referencing is an attempt by the insightful novelist, who was engaged in science and the upper echelons of the Civil Service, to describe the making of our bombs. These regulations relate to that, and it may occasionally be the duty of any Parliament to consider how a regulation first came about. Once again, the novel is The New Men by CP Snow, part of the 11-novel Strangers and Brothers sequence.

My question, if I may pose it, is: how many shipments, if any, are by road annually? Is there any information that the Minister can give responsibly?

Sitting suspended for a Division in the House.

My Lords, I restate my question: how many shipments, if any, are by road annually? I presume that transportation is inevitably through urban centres. Is the Minister able to give us any detail or information of any responsible kind? The proposals on page 7, looking at emergency plans, are clearly well-considered and very sound, but who oversees them? What arm of the British state is responsible in the end for these emergency plans, when one takes into account the chain of command?

I referred very briefly to the village of Rhydymwyn in the county of Flintshire, where the dosages were first suffered. I conclude by telling the Committee that there was an upshot in 1979. It was a general election, and as a Minister I found myself in the wilds of Meirionnydd, not a million miles from Blaenau Ffestiniog. I was hunted in that locality by the constabulary, on the basis of urgent representations made by officials from my department at that time. They had established that in the proximity of Rhydymwyn, which was making something like mustard gas but deep in the bowels of the buildings, there was the beginnings of a trace of atomic energy. The point was: my officials told me that the road outside that factory had shown evidence of collapse, and very dangerous substance material was feared to be leaking. It did not happen, but that is the context of these words.

My Lords, I thank the Minister for introducing this statutory instrument. I am enjoying the novelty of dealing with one that is not related to Brexit, so it is almost like a holiday among all the others.

I have three points to make. First, I welcome the extension of the definitions of an emergency. Some of those are quite subjective in their description—for example, “quality of life”. I wonder what work has gone on to make sure that an emergency is indeed an emergency, and that transporters are not exposed to unwarranted legal action through what would be described as a loose definition in the Act. What impact analysis has been done on the litigation risk around the looseness of the term?

It was very helpful that the Minister brought up the issue of whether this was in order around the Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2018. He mentioned that these regulations would in the event automatically be nullified—“nullity”, I think, was the word he used. How is that nullifying process triggered? Is it part of an overall Bill where a group of SIs or parts of SIs are triggered? My sense is that only a part of this SI gets nullified; or is all of it nullified? What is the mechanism for the triggering of its nullification?

The noble Lord, Lord Jones, paints an interesting picture of his home village. I cannot help thinking that it must be very beautiful and he is hell-bent on keeping people out with tales of mustard gas and atomic leaks.

There is another point to consider. Essential to this is the definition of an emergency worker. Is it someone who is predetermined as an emergency worker? We have heard of the heroic efforts of ordinary engineers and ordinary people during the massive meltdown of the Japanese reactor, and we know that in Chernobyl heroic individuals took it upon themselves to be part of an emergency exercise. Although there is a definition of emergency workers in the SI, it is clear that, if there is an emergency—let us hope it never comes to pass—individuals will become de facto emergency workers by their proximity to what is happening. They perhaps are not covered by these regulations. In any case, how do you limit these people to 500 millisieverts when they are in the middle of an emergency? They do not necessarily have monitoring equipment to hand; they are dealing with an emergency. While this is a useful limit, no emergency is planned, so unless these people are already wearing the necessary monitoring equipment, they will not be monitoring the dose; and if they are accidental emergency workers—if you follow my drift—they will not have that monitoring equipment either. I would welcome the Minister’s response to those three points.

My Lords, I am grateful to the Minister for his explanation of the order before the Committee today, and for providing us with updated information on its passage in the other place. The noble Lord, Lord Fox, said that it is not entirely to do with a no-deal scenario; hence I am a little perplexed as to how this order is split—if that is the right word—into parts that will be nullified and those that will not at the relevant outcome.

I also reiterate that we found it unfortunate that Euratom was swept up into the withdrawal letter, and hence into the withdrawal agreement, and that we need to leave Euratom at the same time as we leave the EU. That is deeply regretted, but I am grateful to the Minister for his updating remarks on the order in the Commons regarding the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008.

We see no issue with the order in general; however, I have noted the circumstances on which the Minister reported, and which have been taken up in other contributions around the Committee, around radioactive emergencies, notably in relation to exposure to risks for emergency workers. I welcome the consultation and the Government’s response: this does indeed strengthen the UK’s emergencies preparedness and aligns with IAEA best practice and the highest safety standards. I also welcome the fact that under the regulations the ONR has a duty to provide information to the public about the nature and effect of a potential radioactive emergency and that they introduce a national reference level below which exposure must be kept.

I put on record that it is of great benefit that there is now a duty to have a handover report to a recovery phase in any emergency and that training will be provided to give clarity to workers, including those that the noble Lord, Lord Fox, asked about, who might suddenly come within the bracket of the emergency regulations, though they may not necessarily have been designated as emergency workers.

The Minister paid regard to the setting of the definitive reference level that was part of the debate in the other place. Emergency workers will be exposed to levels potentially above the general level of 100 millisieverts, to a higher level of 500 millisieverts: this is well above the level that workers were exposed to at the Chernobyl disaster, which reached 350 millisieverts. I recognise that this level is in compliance with the EU directive, but will the Minister say whether it is future policy to look at this more closely and perhaps see what can be done to reduce this in order to be less above the level that would pertain in an ordinary situation? I know that an emergency could entail a wide divergence to very high levels; nevertheless, if he can say something about that, it would be helpful.

I also notice that the ONR will publish guidance. Will that have a statutory reference in relation to health and safety at work? Will it include action to be taken should there be a series of spikes that could cumulatively expose a worker to a level well above that which is generally provided for? Is there any responsibility to an emergency worker should he be put into such a position? With those questions, I am happy to pass the order today.

My Lords, again I thank all three noble Lords for their contributions; in particular I thank the noble Lord, Lord Jones, for his insights on CP Snow, particularly The New Men. It is a long time since I read any CP Snow, but I feel that I must go back and read some.

May I recommend to the noble Lord Corridors of Power, which delineates activities here in this House?

I will try Corridors of Power as well as The New Men. The one thing I will not do, because it is beyond what I should ask of my officials, who are absolutely wonderful and have looked after me very well through all these debates and others, is ask them to read CP Snow. However, they might also take guidance from the noble Lord, Lord Jones.

The noble Lord also asked about the number of shipments by road. I can give him quite a number of figures. The total number of packages containing radioactive material transported by rail was about 1,500, and that was a total number of about 750 consignments. On road transport, we think that there were around a total of 110,000 packages, but again, you have to halve that because of going to and fro. The total figure we seem to have for road, rail and other means is around 40,000 packages. The majority are transported to nuclear power stations, but the transport of radioactive material by rail arises from the civil nuclear industry and consists of transport between Sellafield and the nuclear power stations, and from Sellafield to the low-level waste depository at Drigg. The road transport includes medical and industrial sources, some of which are moved more than once, hence bringing that figure down to 40,000. PHE estimates that 76% of packages transported by road in the UK are medical, 4% are industrial, and the remaining 20% are in the nuclear industry.

I will quickly deal with the point made by the noble Lord, Lord Fox, about the nullifying part of the regulations. I explained that the provision would be nullified, but the noble Lord asked about how nullification happened. There is no formal process—it just happens because a provision has been nullified, and there is case law which indicates how the courts are to treat such a nullified provision. I presume that if it is nullified, it is treated as if it is not there. If the noble Lord wants the case law, it is Inco Europe Ltd v First Choice Distribution in 2000.

On the question of emergency and who oversees that, the emergency plans, which the noble Lord, Lord Jones, asked for, are a matter for the Office for Nuclear Regulation, which is laid down by the Energy Act 2013. Obviously, any definition of “emergency”, as the noble Lord, Lord Fox, points out, to some extent has to be subjective, but further details will be set out in guidance from the ONR. The reference here is based on the IAEA best practice.

The noble Lord also wanted to know just how we would then manage excessive doses. As I think I set out at the beginning, the regulations make lawful a deliberate exposure at high levels in an emergency. Obviously, in extremis workers might be subject to that higher level of exposure. They could not be ordered into such a situation, but—again, as I set out at the beginning—obviously, if it is a question of life and death, that is a different matter.

On the question asked by the noble Lord, Lord Jones, about the 500 milliSieverts level, the regulations provide that in exceptional situations—in order to save life, prevent severe radiation-induced health effects or prevent the development of catastrophic conditions—the reference level for an effective dose from external radiation for emergency workers may be set above 100 milliSieverts, but not exceeding 500 milliSieverts. In line with this provision, the CDG regulations disapply the IRR 2017 dose limits, subject to a maximum of 500 milliSieverts, providing that the emergency worker,

“is engaged in preventing the occurrence of a radiation emergency; or … is acting to mitigate the consequences of a radiation emergency”.

As I said, further guidance will be available from the ONR. These regulations tightly restrict the circumstances under which an emergency worker may be exposed to that maximum dose. They state that such exposure is possible only if this worker is engaged in activities for the purpose of saving life and with their informed consent.

That is slightly helpful, so I thank the Minister, but I am still troubled by what I call the first first responder, who may well be on the scene without the necessary equipment and monitoring of dosage available. We know that people of that nature run towards danger rather than away from it. These people could be knowingly or unknowingly exposing themselves to high dosages, whether at 500 milliSieverts or not. We will not know, because they are not being monitored. What is the policy on individuals who are exposed to radiation but are not in a position to measure that dosage? Is there a modelling process? How would we know what these people are exposing themselves to? Or does this legislation simply not deal with that situation and take the approach that, frankly, it happens but you cannot regulate for it?

I would prefer to write in greater detail to the noble Lord on that. We are bringing in this limit of 500—for the first time, I think I am right in saying—but obviously, in emergencies of the sort he is talking about, things often go beyond what can be regulated for. Would the noble Lord be happy if I wrote to him in greater detail on this? It would be a pity if I started getting things wrong. Obviously, I will copy that to the noble Lords, Lord Jones and Lord Grantchester.

The final point that needed to be dealt with was that from the noble Lord, Lord Grantchester, about emergency workers suffering from cumulative spikes. Any facility suffering multiple strikes—multiple urgencies—could be shut down by the ONR. That is what the ONR is there for. I do not expect that scenario to occur in practice, but obviously there could be occasions. If I need to add more to that, I will write to the noble Lord. I beg to move.

Motion agreed.