1.In its letter to the Department of 4 November 2020, the Committee requested a memorandum on the following:
(a) why regulation 12 amends regulation 12(1) of S.I. 2019/156, but does not make a consequential amendment to regulation 12(2); and
(b) accordingly, where an appeal relates to an application for consent, what the appellant body may do if it does not wish to confirm the original decision.
2.The Transfrontier Shipment of Radioactive Waste and Spent Fuel (Amendment) (EU Exit) Regulations 2020 (“the 2020 Regulations”) amend the Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2019 (“the 2019 Regulations”) for the purpose of implementing Article 5 with Annex 2 of the Protocol on Ireland/Northern Ireland (“the Protocol”). This requires the continued application of Council Directive 2006/117/EURATOM (“the Directive”) with respect to Northern Ireland although, as the Department has set out in the Explanatory Memorandum, there are presently no shipments of radioactive waste or spent fuel into Northern Ireland, nor are they foreseen. The Directive was transposed into domestic law by the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008 (“the 2008 Regulations”), which the 2019 Regulations revoke. Regulation 12 of the 2020 Regulations amends regulation 12 (appeals) of the 2019 Regulations to re-instate in full the wording and effect of regulation 13 (appeals) of the 2008 Regulations. The Department considers that this approach ensures the continued application of the Directive as originally transposed by the 2008 Regulations, thereby satisfying the requirements of the Protocol. The Department decided against amendments going beyond the re-instatement of the provisions of the 2008 Regulations necessary to comply with the Protocol in order to ensure continuity for operators and competent authorities.
3.The Department acknowledges that should the appellant body not wish to confirm the decision relating to a refusal for an application for consent, the regulations do not provide alternative action. This lack of provision results from the drafting of the 2008 Regulations. As per the explanation above, the Department decided against amendments which would have gone beyond re-instating the wording and effect of the 2008 Regulations, since they effectively implemented the Directive.
In relation to the words “(or the person having responsibility for a shipment that has not been authorised)” in regulation 13, explain the circumstances in which a shipment of radioactive waste or spent fuel could be brought into the United Kingdom without being authorised (and who is liable for costs arising if a shipment that has not been authorised is not completed).
4.A shipment of radioactive waste or spent fuel could be brought into the United Kingdom which has not been authorised under the UK Regulations, but has been authorised by the competent authority of the Euratom Community state of origin, where consent to the authorisation has been given by the Northern Ireland competent authority. The insertion of the words “(or the person having responsibility for a shipment that has not been authorised)” into regulation 13 (unlawful shipments) of the 2019 Regulations re-instates in full the wording and effect of regulation 14(3) (unlawful shipments) of the 2008 Regulations. This ensures that shipments which were not authorised but were consented to by the Chief Inspector are included in scope. As explained above, in order to comply with the requirements of the Protocol, the Department decided to re-instate as necessary the wording and effect of the 2008 Regulations which implemented the Directive thereby ensuring continuity for operators and competent authorities.
In relation to regulation 16 (inserted paragraph 9), clarify the circumstances in which the Chief Inspector will receive notification “in accordance with regulation 8” for a shipment whose destination is Northern Ireland, given that regulation 8 applies to shipments from the United Kingdom to another country.
5.The Department is grateful to the Committee for bringing this matter to its attention. The reference to “regulation 8” in the provision cited by the Committee is an error. The provision should read “in accordance with regulation 7”. Regulation 7 provides for notification of a competent authority by a person who receives a shipment of radioactive waste and spent fuel from outside the United Kingdom. Where the destination of such a shipment is in Northern Ireland and the shipment originates from a member State, the Chief Inspector must send copies of the notification to the relevant competent authorities. The Department will correct this error at the next opportunity.
Department for Business, Energy and Industrial Strategy
10 November 2020
Published: 20 November 2020