Austria's comments on proposed directive on control of high activity sealed radioactive sources

Brussels, 8 May 2002

Proposal for a Council Directive on the control of high activity sealed radioactive sources. Cover note. Brussels, 3 May 2002 (07.05) (document 8635/02 ATO 57). Full text

Delegations will find attached the comments of the Austrian delegation on the above subject.

I. Austria's comments on the proposal for a Council Directive on the control of high activity sealed radioactive sources (COM(2002) 130 final)

First of all, we would point out that, on the one hand, execution of the measures referred to in the draft Directive in its current form will require very high administrative expenditure; on the other hand, in the case of some of the planned measures it appears at least open to question whether the benefit which is undoubtedly aimed for can really be adequately achieved by means of the planned administrative measures. Furthermore, the layout and wording of the draft Directive in part give the impression that the authorities in particular should be made liable for guaranteeing the safe handling of high activity radioactive sources, rather than the holders, which is in fact the situation according to the law applicable. Austria also takes the view that the safe handling of high activity radioactive sources depends very substantially on the existence of a safety culture; however, this cannot relate only to high activity radioactive sources, but must refer in general to the handling of radioactive sources ­ which is why in Austria the handling of radioactive sources with activity above the exemption values is normally subject to authorisation.

Comments on the individual Articles:

Re Article 2:

The logic behind and the need for the individual definitions should be examined.

Re (d): The question arises whether the definition of the term "disused source" lays too much stress on the possibility of individual long-term storage, with the result that it is the definition itself which stimulates the desire of many holders to make use of individual long-term storage. Sources which are no longer used should in principle be transferred or disposed of as quickly as possible, as the mere fact of long-term storage of a source means that the necessary attention and the availability of specialist competence will inevitably decline, with an increased risk of this source getting out of control. There are no objections in principle to approval of long-term storage in exceptional cases. However, a separate term is not necessary for this purpose.

Re (i): The definition of the term "reused source" seems unnecessary, as this term is only mentioned in the document in the definitions.

Re (l): It is not clear what grounds are or were relevant for the definition of the term "user", particularly with regard to differentiating it from the term "holder". The person required to comply with the provisions of the law will presumably always be the holder. Although the term "user" is employed several times in the explanatory memorandum (presumably instead of the term "holder"), it is only once used in the Directive, and there only in the standard record sheet, where it would certainly be better to replace it with the term "holder", as according to Articles 5 and 6 the holder is the person liable.

Re Article 3:
Re paragraph 2:
Re (a):

In principle, it should be required that sources which are no longer used are transferred or disposed of as radioactive waste. Long-term storage of disused sources should be an exception and this should also be clearly expressed in the provisions of the Directive.

Re (b):

This requirement seems difficult to implement, especially for small Member States, as such funds would have to be administered and presumably also assessed, and a suitable administrative unit would have to be set up for this purpose, which again would first give rise to corresponding costs. The Commission should be asked to explain in greater detail what form of financial provision is intended here.

Re paragraph 3:

Re (a) and (b):

The authority is not entitled to lay down general rules on in-house responsibilities. The person liable vis-à-vis the legislator and the authority is the holder of the authorisation. Whatever in-house hierarchies the latter develops are subject only to his responsibility. Although the legislator may stipulate that the holder of the authorisation must use certain appropriately qualified persons (radiation protection officer, hazardous goods officer, security engineer, etc.) to advise and support him, this nevertheless does not relieve the holder of the authorisation of his fundamental responsibility. Any requirement for special vocational training along the lines of an apprenticeship lasting several years, exclusively for dealing with high activity radioactive sources, seems exaggerated at a time when efforts are being made on all sides to achieve deregulation. The setting of minimum qualifications for staff in general does not seem expedient.

Re (c):

The Commission should be asked to specify what is meant by "equipment performance".

Re (g):

The present wording makes it possible in principle to approve unrestricted storage of disused sources in the undertaking of the holder of the authorisation, which is presumably not the intention.

(The phrase "possible transfer" means that at the end of use transfer to the suppliers or disposal as radioactive waste is not mandatory).

Re Article 4:

With regard to transfer to a holder, former suppliers or disposers in third States, there should be Community provisions, as importation and exportation into and out of the common market of products subject to control should be harmonised and universally valid.

Re Article 5:
Re paragraphs 1 and 2:

Paragraphs 1 and 2 should be transposed. Furthermore, it should be noted that first of all the holder of the authorisation must be required to maintain appropriate records of transfer and disposal on termination of authorisation, and he must then be required to notify this information to the authority; only then is it appropriate to require the authority to maintain such records.

Re paragraph 3:

The holder (of the authorisation) should be required to notify the authority forthwith of possession (first indent) and transfer (third indent). If the tracking of sources which have got out of control is to be successful, regular notifications to the authority (second indent) must occur at least at a maximum interval of three months. The possibility of conducting a successful administrative enquiry into the whereabouts of a source one year after its unnotified loss does not seem very realistic.

Re Article 6:
Re (b):

Such verifications only seem appropriate if the sources are not used for a long time. However, it would be important to carry out a regular check on whether the protective container, any closing devices on the protective container, delivery facilities (for example, for gamma radiography devices) and other safety-relevant equipment, etc. are in technically sound condition. Furthermore, it should be checked regularly whether the marking, especially through the radiation warning sign, is easily legible and identifiable.

Re (c):

Unlawful use is presumably already covered by "unauthorised access", and possibly also by loss and theft. It should be checked whether a list of examples would be preferable to an exhaustive list.

Re (d):

More important than notification of the outbreak of a fire or other events which could give rise to damage to the source would be the immediate obligation to carry out an inspection of the protective container and, if necessary, a check that it is leakproof, and subsequent notification to the authority of the event, the steps taken and the result of the check, if it was required.

Re (e):

See comment on Article 3(2)(a).

Re Article 7:
Re paragraph 1:

The necessary markings should be either engraved or stamped. Experience shows that only markings such as these are still recognisable after lengthy periods of use. Experience also shows that, in the event of fire, any labelling is usually rendered illegible, thereby making it impossible to achieve the desired aim.

Re paragraph 2:

As currently worded, this requirement to ensure that the identification number is affixed actually obliges the Member States to remove the high activity source from the protective container and inspect it to ensure that the identification number and the marking have been affixed properly. In view of the effort involved (as a rule, insertion into a "hot cell"), that cannot be the intention. It should be obligatory for the written information to be attached in the language of the user country.

As in paragraph 1, this obligation should be aimed at the manufacturer or supplier.

The Commission should check to determine how these provisions stand in relation to possible provisions in the machinery Directive or regulations on product liability.

Re Article 8:
Re paragraph 2:

Practice shows that both radioactive material and discrete radioactive substances can be found in scrap metal. As far as is known, the metal-working industry requires scrap metal that is not contaminated with radiation. As a rule the metal-working industry checks this using monitors and refuses to accept the delivery if there is measurable proof of contamination. In the framework of this private-law business transaction, one party orders a particular product (scrap metal) with precisely defined specifications ("free of radioactive contaminants"). It is the supplier's responsibility to fulfil the specifications and if necessary provide proof. Under no circumstances should the authorities be expected to assume responsibility for monitoring particular specifications ("free of radioactive contaminants") at nodal transit points and customs posts for private business transactions. If defects become common, the parties to the transaction should be compelled to take the necessary initiatives to ensure that the business is conducted properly, if necessary on instruction from the authorities in individual cases or by legal measures. Where the scrap metal is imported from third countries, it would be appropriate for such initiatives to be based on Community law. The responsibility of the authorities can extend only to conducting random checks for compliance with legal provisions. Of course, there is nothing to be said against providing the necessary training and information within the meaning of Article 8; however, information and training are unlikely to resolve the problem. This can be achieved only by measurement that provides the requisite proof.

Re Article 9:

It should be made clear that scrap metal does not constitute ownerless goods and that a supplier is liable for the quality of his product. Consequently, any costs for making safe materials contaminated with radiation or discrete radioactive sources in scrap metal cannot be left to the public purse. It is up to the supplier, and if necessary the recipient, to take all necessary measures to guarantee that business is conducted satisfactorily in accordance with the law.

To sum up, Austria would state that it recognises the need for adequate controls on radioactive sources and welcomes in principle measures to improve such controls. For the above reasons in particular, Austria cannot agree with the present draft and therefore maintains its substantive reservation.

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