Description
Study on Legal and practical challenges of the Management of Disused Sealed Radioactive Sources : Numerous radioactive sealed sources are used in industry, agriculture and medicine. Millions of radioactive sources have been distributed worldwide over the past 50 years, with hundreds of thousands currently being used or stored at the end-user's premises. Worldwide, the IAEA has tabulated more than 20,000 operators of significant radioactive sources, with 12,000 industrial sources for radiography supplied annually and about 300 irradiator industrial facilities containing radioactive sources in operation.
LAURENT KUENY • LEGAL AND PRACTICAL CHALLENGES OF THE MANAGEMENT OF DISUSED SEALED RADIOACTIVE SOURCES
PAGE 1
INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
Legal and practical challenges of the Management
of Disused Sealed Radioactive Sources
Laurent Kueny
1
Numerous radioactive sealed sources are used in industry, agriculture and medicine. Millions
of radioactive sources have been distributed worldwide over the past 50 years, with hundreds
of thousands currently being used or stored at the end-user’s premises. Worldwide, the IAEA
has tabulated more than 20,000 operators of significant radioactive sources, with 12,000
industrial sources for radiography supplied annually and about 300 irradiator industrial
facilities containing radioactive sources in operation
2
.
Source safety and security has recently become a major focus of concern, particularly after
the 9/11 terrorist attack in the USA, after which reassessment of threats revealed the
importance of the risk of radiological dispersal devices (RDD), less formally known as a
“dirty-bombs”
3
. Sanitary effects of such a bomb depend more on the conventional explosive
used for the bomb than on its radiological content. But the long-term costs of such an attack
would be very high due to the remediation costs and to the psychological effects of a RDD,
which could persist for a decade
4
.
The Management of disused sealed sources appears then to be a key point to ensure nuclear
safety and security worldwide, while the international legal framework to govern it remains
still very weak.
I. DSRS, Radioactive Waste and Nuclear Law
Facing the difficulty to establish an international legally binding instrument for governing the
safety and the security of radioactive sources, the international community adopted in 2003 a
“voluntary in nature” document. The ‘Code of Conduct on the Safety and Security of
Radioactive Sources’ (Code of Conduct) was approved by the Board of Governors of the
International Atomic Energy Agency (IAEA) in September 2003
5
. The IAEA General
Conference, in resolution GC(47)/RES/7 (September 2003), when welcoming this approval,
further urged each State to write to the IAEA Director General to show their support for the
Agency’s efforts in this area and that they were “working towards following the guidance
1
Counsellor for Nuclear Safety, French Permanent Mission to the IAEA in Vienna, Former Director for transport and sources of the
French Nuclear Safety Authority (ASN), Ingenieur of the French State Technical Corps (“Corps des Mines”), ISNL Alumni 2009.
The author alone is responsible for the facts and opinions expressed in this article. The views expressed in this article are those of
the author and do not necessarily represent those of any organization he may be affiliated with.
2
2002 IAEA statistics.
3
“Guidance on the Import and Export of Radioactive Sources”, Ann McLachlan, OECD/NEA Nuclear Law Bulletin n°75.
4
See, for instance, “A Risk and Economic Analysis of Dirty Bomb Attacks on the Ports of Los Angeles and Long Beach”, H. Rosoff,
D. Von Winterfeldt, Risk Analysis journal, July 2007. The immediate economic costs of such a terrorist event, in terms of injuries,
cleanup and business closures, would likely exceed $1 billion, according to the study, but the economic impact would continue for a
long time (nearly 16 billion in a decade).
5
The current version of the Code of Conduct was published in January 2004.
LAURENT KUENY • LEGAL AND PRACTICAL CHALLENGES OF THE MANAGEMENT OF DISUSED SEALED RADIOACTIVE SOURCES
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INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
contained in the Code. Over 110 States have now submitted a statement of political support,
showing a very large international commitment to implement the Code.
The Code of Conduct provides guiding principles for Members States to achieve and
maintain a high level of safety and security of radioactive sources. It provides a basic
governance framework for radioactive sources to help harmonizing national regulations
around the world. It does not, however, provide a detailed or exhaustive list of measures,
which can be found, for instance, in other IAEA guidance documents.
Continued strong progress in development of regulatory infrastructure for the control of
radioactive sources has been made over the past ten years through the implementation of the
code and through the assistance of the IAEA
6
. However, it is internationally recognized that
the management of disused sealed radioactive sources (DSRS) is the weakest point in the
chain of control over the life cycle of radioactive sources
7
, while the challenge is very partly
addressed the Code of conduct and other international reference or legal document.
Definitions for radioactive sources and disused sources can be found in IAEA standards and
in the Code of Conduct:
• According to the IAEA Basic Safety Standards
8
a source of radiation is
“anything that may cause radiation exposure — such as by emitting ionizing
radiation or by releasing radioactive material — and can be treated as a
single entity for protection and safety purposes”.
• According to the same standard, a radioactive sealed source is “a radioactive
source in which the radioactive material is (a) permanently sealed in a
capsule or (b) closely bonded and in a solid form”
9
.
• According to the Code of Conduct, “Disused source” means a radioactive
source which is no longer used, and is not intended to be used, for the practice
for which an authorization has been granted
10
.
Therefore, the Code of conduct and the IAEA standards doesn’t give provisions to govern the
transition of a DSRS to the status of radioactive waste.
The Joint Convention on the Safety of Spent Fuel Management and on the Safety of
Radioactive Waste Management (Joint Convention)
11
was adopted on 5 September 1997 by
84 States at a Diplomatic Conference convened at Vienna by the International Atomic Energy
Agency (IAEA) and it entered into force on 18 June 2001. 64 States are now Contracting
Party of the Convention. At the end of their useful lifetime and if they cannot be cleared,
recycled, disposed of, disused sources are considered to be, and managed as, radioactive
waste. The Joint Convention covers explicitly the management of “disused sources”
considered as radioactive wastes in its article 28. Every three years, the National Reports for
the Joint Convention Review Meetings has then to include provisions on the management of
6
Open-Ended Meeting of Technical and Legal Experts for Sharing of Information on States’ Implementation of the Code of
Conduct on the Safety and Security of Radioactive Sources and its supplementary Guidance on the Import and Export of
Radioactive Sources, report of the Chairman, 2010.
7
IAEA senior regulator’s meeting 2009, chairman’s report.
8
General Safety Requirements part 3 : “Radiation Protection and Safety of Radiation Sources : International Basic Safety
Standards”, IAEA, Vienna, 2012.
9
The same definition is used in the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive
Waste Management.
10
Code of conduct on the safety and security of radioactive sources.
11
The text of the Convention is contained in IAEA document GOV/INF/821-GC(41)/INF/12
LAURENT KUENY • LEGAL AND PRACTICAL CHALLENGES OF THE MANAGEMENT OF DISUSED SEALED RADIOACTIVE SOURCES
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INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
disused sources and the review meetings provide a valuable opportunity to bring together and
facilitate communication among all the actors involved on these issues
12
.
However, the transition from the status of “radioactive source”, to “disused source” and
further to “radioactive waste” is defined neither in the Code of Conduct nor in the Joint
Convention.
According to the Joint Convention, “Radioactive waste” means radioactive material (…) for
which no further use is foreseen (…), and which is controlled as radioactive waste by a
regulatory body under the legislative and regulatory framework (…)
13
. Accordingly, it may
be inferred that disused sources are not legally considered as radioactive wastes as long as
they are not declared as radioactive wastes. However, no international legal instrument
provides criteria and conditions for the transition from one status to the other, and it
constitutes an overlaps between existing legal international instruments governing radioactive
sources and radioactive waste. This overlap has been in particular recognised by the recent 4
th
review meeting of the Joint Convention, during which it was decided to strengthen the report,
under the Joint Convention review processes, on the status of disused sealed sources within
the framework of the national legislations and on the national strategy for the management of
disused sealed sources, including the legal responsibilities of manufacturers, suppliers,
owners and users of sealed sources for their end-of-life management
14
.
II. Legacy of DSRS and the difficulty to define a global response
The lack of the sustainability of the management of DSRS at international level is raised by
the legacy of radioactive sources. Since the 1960s, private companies and State owned
organizations have sold and donated radioactive sources and source-containing devices
15
. In
many countries, some disused sources have been abandoned or are placed in facilities that are
often improperly maintained and poorly guarded. These types of at-risk sources have the
potential to be stolen and used for malicious purposes, particularly in regions with high local
geopolitical tensions. Currently, there are tens of thousands of locations worldwide storing
radioactive sources. Some of these sources could be potentially employed for use in a
radiological dispersal device.
The response to this threat developed by some countries and by the IAEA is to assist for the
repatriation of sources from some developing countries to supplier States. Repatriation is
understood as arrangements for return of previously exported radioactive sources to a
Supplier States with special support or facilitation from that Supplier State’s government
16
.
So far, Canada, France, Russia and the USA have accepted these sources, acknowledging
12
See IAEA International Workshop on “Sustainable Management of Disused Sealed Radioactive Sources”, Lisbon, 11-15 October
2010, Report of the Chairman.
13
Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management.
14
Fourth Review Meeting of the Contracting Parties pursuant to Article 30 of the Joint Convention, 14 to 23 May 2012, Vienna,
summary report.
15
Global threat reduction source recovery efforts in Latin America, Ray Greenberg Jr, Julia Whitworth, Cristy Abeyta, Charles
Streeper, Jan-Marie Potier, Shelby Leonard, Off-Site Source Recovery Project, NNSA’s Global Threat Reduction Initiative, 2008.
16
Definition suggested during the technical meeting on the implementation of the Code of Conduct on the Safety and Security of
Radioactive Sources with regard to the Long term Strategies for the Management of Disused Sealed Radioactive Sources, Vienna,
February 27
th
to March 1
st
2012 (see the §13 of the chairman’s report).
LAURENT KUENY • LEGAL AND PRACTICAL CHALLENGES OF THE MANAGEMENT OF DISUSED SEALED RADIOACTIVE SOURCES
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INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
being the countries of origin of the sources. Approximately US$ 1 million has been for
instance invested by the Agency in repatriating sources to date.
Repatriation sets however many legal, technical and financial challenges.
The first one is the “country of origin” issue. When an abandoned or non-secured source is
identified in a country, the origin of the source has to be determined before planning a
possible repatriation. The identification of the origin of the source requires very often
technical investigations to access and dismantle the device containing the source, with
associated costs and radiological risks, and to do research in suppliers or manufacturers
archives. The concept of origin itself needs to be clarified: in some cases, the country that
manufactured the source, the country that supplied the source, the country that exported the
source and the country that could have donated the source can be different, and there is no
international instrument helping to define which is the country of origin of the source. Even
more complex situations can be identified:
• A source contained in a certain device is originally provided in a country “B” by a
supplier from a country “A”,
• After a few years, the source is repackaged in another device by a supplier from a
country “C” and it is further delivered for use in a country “D”.
In such a case, if it is considered necessary to repatriate the source from country “D” after a
few years for safety and security reasons, what would be the “country of origin” of the
source?
An international common understanding of the “country of origin” issue is clearly needed and
the 4
th
review meeting of the Joint Convention has consequently decided to increase the
discussions on that issue through the request for Contracting Parties to report on “the
retrieval approach, if any, of sealed sources considered as having a national origin from a
foreign state”.
Another difficulty of repatriation is the status of the disused source with respect to the
radioactive waste legislation in some supplier States. Indeed, some national legislation forbid
to import radioactive waste. If a disused source to be repatriated is already considered as a
radioactive waste by the State of origin of the source, the authorization to repatriate the
source can be very difficult to obtain as it can be considered as an import of foreign
radioactive waste
17
.
The international transport regulation is also a major challenge for sources repatriation. The
“special form” certificate of the sources to be repatriated has often expired, so that the use of
packages under international agreement of transport is often very difficult. The solution to
request special arrangements for the transports can be used but these special arrangements
have then to be requested in every countries crossed by the transport. As a consequence,
transport part of repatriation projects can be a significant technical and administrative
burden.
17
In some countries like in France, it has however been considered that the article 28 of the Joint Convention was covering this
case. The article provides that “a Contracting Party shall allow for reentry into its territory of disused sealed sources if, in the
framework of its national law, it has accepted that they be returned to a manufacturer qualified to receive and possess the disused
sealed sources”.
LAURENT KUENY • LEGAL AND PRACTICAL CHALLENGES OF THE MANAGEMENT OF DISUSED SEALED RADIOACTIVE SOURCES
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INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
All these difficulties contribute to increase the cost of project of repatriation and contribute to
the conclusions that repatriation of radioactive sources can only remain the very last option
for the management of DSRS.
To respond efficiently to legacy should off course remain an international priority but it is
maybe even more important to ensure a sustainable management of disused sources in the
future to avoid these legacy problems in the future.
III. Toward a sustainable management of disused sources?
The management of disused source has to take into account of two fundamentally different
environments for the management of sources and for the management of radioactive wastes:
• The market of radioactive sources is international, it relies principally on international
companies which manufacture, sell, store, import, and export the sources from
countries to others. The market is regulated by authorities through authorizing these
activities and these transfers according to the recommendations of the Code of
Conduct and related guidance on import and export.
• The management of radioactive waste is mainly regulated at national levels, with well
defined roles and responsibilities, in accordance with the polluter-pay principle and
other national policies. The European directive on radioactive waste and spent fuel
management stipulates for instance the prime responsibility of generators and the
ultimate responsibility of each Member State for the management of waste generated
on its territory by ensuring that appropriate national arrangements are taken to
guarantee a high level of safety to protect workers and the general public against the
risks arising from ionising radiation
18
. Although transboundary movements of
radioactive wastes are framed by the Joint Convention and not forbidden, these
movements remain in practice very limited, except for reprocessing purposes.
This decision to classify a DSRS as a radioactive waste has consequently strong legal and
practical implications concerning the possibilities to import/export the source and to the
extent that it is generally an ultimate regulatory decision.
According to the Code of Conduct, “every State should encourage the reuse or recycling of
radioactive sources, when practicable and consistent with considerations of safety and
security”. As end users don’t have the technical capacity to do the necessary controls for
reuse of the sources or to recycle them, the objective set in the Code can only be achieved
through the retrieval of sources by suppliers and manufacturers, including, when necessary
through import/export of the disused sources.
To achieve this intended purpose, two ways can be indentified:
• In case of reloading of a device with a new radioactive source, a one-for-one source
exchange of the disused source is a common practice of the industry (the disused
source being taken over by the supplier of the new source). This practice, when
generalized, would ensure very simply a process of management of the disused
sources by the international market during the life-time of industrial activities.
• The Code of Conduct further encourages the attachment in Licenses of “clear and
unambiguous conditions” concerning, “where applicable, agreements regarding the
18
Council Directive 2011/70/Euratom of 19 July 2011 establishing a Community framework for the responsible and safe
management of spent fuel and radioactive waste.
LAURENT KUENY • LEGAL AND PRACTICAL CHALLENGES OF THE MANAGEMENT OF DISUSED SEALED RADIOACTIVE SOURCES
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INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
possible return of decayed/disused sources to a supplier”. Many countries like
France have established a licensing policy of not accepting the import of a sealed
source unless its return to the manufacturer or supplier is guaranteed. This “right of
return” to the previous supplier in the supply chain, until the manufacturer, implies
conditions to be included in the private contracts. The related requirement for the
suppliers and manufacturers is not to finance the whole management of DSRS but to
offer Technical solutions for taking back the source on a fee for service basis.
Consequently, the cost of the return remains under the responsibility of the
user/owner of the source. It has to be noted that the implementation of the “right of
return” is easier when a life-time for supplied source is defined by the regulation
19
.
Suppliers and manufacturers have indeed to maintain a technical capacity to be able
to recover DSRS, as long as owners of sources can exercise their “right of return”.
These both practices can help to reduce drastically the remaining DSRS in a country
20
and
they could consequently become an international legally binding requirement or, a minima,
be included in a revised version of the Code of conduct.
In some cases, no option to value disused sources on the market through reuse or recycling
can be identified, either because they can not be recycled any more for technical or financial
reason, either because no customer can be found on the market for the type of radionuclide of
the sources or due to the bankrupt of one of the actor of the supply chain which would have
been legally responsible to take over the source (user or supplier). In such a case, there is
often no other option as to manage the disused sources as radioactive waste.
As we described it above, the repatriation can not be seen as an alternative sustainable
management solution, even for less advanced countries. Therefore each country must
develop and implement comprehensive domestic solution for the end-of-life management of
radioactive sources, with the expectation that they may remain in the country indefinitely
21
.
The adequate infrastructure for managing disused sources as radioactive waste is to be
provided on a fee for service basis when no other option for reuse or recycling through the
industrial market is available.
Conclusion
The Code of Conduct on the Safety and Security of Radioactive Sources together with its
related guidance on import and export, and the Joint Convention on the Safety of Spent Fuel
Management and on the Safety of Radioactive Waste Management are important instruments
to govern the safety and the security of the life cycle of radioactive sources.
However, on the one hand, the legal status of the Code of Conduct remains very weak,
despite the large political commitment expressed for its implementation. On the other hand,
the issues concerning the management of DSRS are very partly addressed by both
19
Ten years, with possible extensions up to twenty years for instance in France
20
As an exemple, less than 10% of DSRS remain for instance in Japan, 90% being returned to foreign suppliers (Statistics from the
Ministry of education, culture, sports, science of technology of Japan).
21
See “policies & strategies for Lifetime Management of Radioactive Sources”, in the report of the chairman of the IAEA
International workshop on “Sustainable Management of Disused Sealed Radioactive Sources”, 11-15 Octobre 2010
LAURENT KUENY • LEGAL AND PRACTICAL CHALLENGES OF THE MANAGEMENT OF DISUSED SEALED RADIOACTIVE SOURCES
PAGE 7
INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
instruments, while this management is recognized as being the weakest point in the
regulation of the life-cycle of radioactive sources.
The principle to return radioactive sources to the suppliers and to the manufacturers once
disused increases considerably the potential for recycling and reuse of the DSRS on the
market. This principle could however only be efficiently implemented worldwide through
new international legal instruments, or, a minima, through a revision of the Code of Conduct.
For number of reasons, however, many DSRS cannot, in some cases, be returned to the
previous suppliers or to the manufacturers, reuse or recycled. Consequently, sustainable
management of DSRS would require that the classification of DSRS as radioactive waste
remain an option of management at all stages of the supply chain of radioactive source. This
decision should however remain the result of the lack of any further possibility to recover the
disused source on the international market through reuse or recycling.
Consequently, every country using radioactive sources has the responsibility to develop
domestic solution for the management of DSRS, as radioactive waste, as a last resort, and
provide adequate legal and financial provisions accordingly.
doc_412892963.pdf
Study on Legal and practical challenges of the Management of Disused Sealed Radioactive Sources : Numerous radioactive sealed sources are used in industry, agriculture and medicine. Millions of radioactive sources have been distributed worldwide over the past 50 years, with hundreds of thousands currently being used or stored at the end-user's premises. Worldwide, the IAEA has tabulated more than 20,000 operators of significant radioactive sources, with 12,000 industrial sources for radiography supplied annually and about 300 irradiator industrial facilities containing radioactive sources in operation.
LAURENT KUENY • LEGAL AND PRACTICAL CHALLENGES OF THE MANAGEMENT OF DISUSED SEALED RADIOACTIVE SOURCES
PAGE 1
INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
Legal and practical challenges of the Management
of Disused Sealed Radioactive Sources
Laurent Kueny
1
Numerous radioactive sealed sources are used in industry, agriculture and medicine. Millions
of radioactive sources have been distributed worldwide over the past 50 years, with hundreds
of thousands currently being used or stored at the end-user’s premises. Worldwide, the IAEA
has tabulated more than 20,000 operators of significant radioactive sources, with 12,000
industrial sources for radiography supplied annually and about 300 irradiator industrial
facilities containing radioactive sources in operation
2
.
Source safety and security has recently become a major focus of concern, particularly after
the 9/11 terrorist attack in the USA, after which reassessment of threats revealed the
importance of the risk of radiological dispersal devices (RDD), less formally known as a
“dirty-bombs”
3
. Sanitary effects of such a bomb depend more on the conventional explosive
used for the bomb than on its radiological content. But the long-term costs of such an attack
would be very high due to the remediation costs and to the psychological effects of a RDD,
which could persist for a decade
4
.
The Management of disused sealed sources appears then to be a key point to ensure nuclear
safety and security worldwide, while the international legal framework to govern it remains
still very weak.
I. DSRS, Radioactive Waste and Nuclear Law
Facing the difficulty to establish an international legally binding instrument for governing the
safety and the security of radioactive sources, the international community adopted in 2003 a
“voluntary in nature” document. The ‘Code of Conduct on the Safety and Security of
Radioactive Sources’ (Code of Conduct) was approved by the Board of Governors of the
International Atomic Energy Agency (IAEA) in September 2003
5
. The IAEA General
Conference, in resolution GC(47)/RES/7 (September 2003), when welcoming this approval,
further urged each State to write to the IAEA Director General to show their support for the
Agency’s efforts in this area and that they were “working towards following the guidance
1
Counsellor for Nuclear Safety, French Permanent Mission to the IAEA in Vienna, Former Director for transport and sources of the
French Nuclear Safety Authority (ASN), Ingenieur of the French State Technical Corps (“Corps des Mines”), ISNL Alumni 2009.
The author alone is responsible for the facts and opinions expressed in this article. The views expressed in this article are those of
the author and do not necessarily represent those of any organization he may be affiliated with.
2
2002 IAEA statistics.
3
“Guidance on the Import and Export of Radioactive Sources”, Ann McLachlan, OECD/NEA Nuclear Law Bulletin n°75.
4
See, for instance, “A Risk and Economic Analysis of Dirty Bomb Attacks on the Ports of Los Angeles and Long Beach”, H. Rosoff,
D. Von Winterfeldt, Risk Analysis journal, July 2007. The immediate economic costs of such a terrorist event, in terms of injuries,
cleanup and business closures, would likely exceed $1 billion, according to the study, but the economic impact would continue for a
long time (nearly 16 billion in a decade).
5
The current version of the Code of Conduct was published in January 2004.
LAURENT KUENY • LEGAL AND PRACTICAL CHALLENGES OF THE MANAGEMENT OF DISUSED SEALED RADIOACTIVE SOURCES
PAGE 2
INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
contained in the Code. Over 110 States have now submitted a statement of political support,
showing a very large international commitment to implement the Code.
The Code of Conduct provides guiding principles for Members States to achieve and
maintain a high level of safety and security of radioactive sources. It provides a basic
governance framework for radioactive sources to help harmonizing national regulations
around the world. It does not, however, provide a detailed or exhaustive list of measures,
which can be found, for instance, in other IAEA guidance documents.
Continued strong progress in development of regulatory infrastructure for the control of
radioactive sources has been made over the past ten years through the implementation of the
code and through the assistance of the IAEA
6
. However, it is internationally recognized that
the management of disused sealed radioactive sources (DSRS) is the weakest point in the
chain of control over the life cycle of radioactive sources
7
, while the challenge is very partly
addressed the Code of conduct and other international reference or legal document.
Definitions for radioactive sources and disused sources can be found in IAEA standards and
in the Code of Conduct:
• According to the IAEA Basic Safety Standards
8
a source of radiation is
“anything that may cause radiation exposure — such as by emitting ionizing
radiation or by releasing radioactive material — and can be treated as a
single entity for protection and safety purposes”.
• According to the same standard, a radioactive sealed source is “a radioactive
source in which the radioactive material is (a) permanently sealed in a
capsule or (b) closely bonded and in a solid form”
9
.
• According to the Code of Conduct, “Disused source” means a radioactive
source which is no longer used, and is not intended to be used, for the practice
for which an authorization has been granted
10
.
Therefore, the Code of conduct and the IAEA standards doesn’t give provisions to govern the
transition of a DSRS to the status of radioactive waste.
The Joint Convention on the Safety of Spent Fuel Management and on the Safety of
Radioactive Waste Management (Joint Convention)
11
was adopted on 5 September 1997 by
84 States at a Diplomatic Conference convened at Vienna by the International Atomic Energy
Agency (IAEA) and it entered into force on 18 June 2001. 64 States are now Contracting
Party of the Convention. At the end of their useful lifetime and if they cannot be cleared,
recycled, disposed of, disused sources are considered to be, and managed as, radioactive
waste. The Joint Convention covers explicitly the management of “disused sources”
considered as radioactive wastes in its article 28. Every three years, the National Reports for
the Joint Convention Review Meetings has then to include provisions on the management of
6
Open-Ended Meeting of Technical and Legal Experts for Sharing of Information on States’ Implementation of the Code of
Conduct on the Safety and Security of Radioactive Sources and its supplementary Guidance on the Import and Export of
Radioactive Sources, report of the Chairman, 2010.
7
IAEA senior regulator’s meeting 2009, chairman’s report.
8
General Safety Requirements part 3 : “Radiation Protection and Safety of Radiation Sources : International Basic Safety
Standards”, IAEA, Vienna, 2012.
9
The same definition is used in the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive
Waste Management.
10
Code of conduct on the safety and security of radioactive sources.
11
The text of the Convention is contained in IAEA document GOV/INF/821-GC(41)/INF/12
LAURENT KUENY • LEGAL AND PRACTICAL CHALLENGES OF THE MANAGEMENT OF DISUSED SEALED RADIOACTIVE SOURCES
PAGE 3
INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
disused sources and the review meetings provide a valuable opportunity to bring together and
facilitate communication among all the actors involved on these issues
12
.
However, the transition from the status of “radioactive source”, to “disused source” and
further to “radioactive waste” is defined neither in the Code of Conduct nor in the Joint
Convention.
According to the Joint Convention, “Radioactive waste” means radioactive material (…) for
which no further use is foreseen (…), and which is controlled as radioactive waste by a
regulatory body under the legislative and regulatory framework (…)
13
. Accordingly, it may
be inferred that disused sources are not legally considered as radioactive wastes as long as
they are not declared as radioactive wastes. However, no international legal instrument
provides criteria and conditions for the transition from one status to the other, and it
constitutes an overlaps between existing legal international instruments governing radioactive
sources and radioactive waste. This overlap has been in particular recognised by the recent 4
th
review meeting of the Joint Convention, during which it was decided to strengthen the report,
under the Joint Convention review processes, on the status of disused sealed sources within
the framework of the national legislations and on the national strategy for the management of
disused sealed sources, including the legal responsibilities of manufacturers, suppliers,
owners and users of sealed sources for their end-of-life management
14
.
II. Legacy of DSRS and the difficulty to define a global response
The lack of the sustainability of the management of DSRS at international level is raised by
the legacy of radioactive sources. Since the 1960s, private companies and State owned
organizations have sold and donated radioactive sources and source-containing devices
15
. In
many countries, some disused sources have been abandoned or are placed in facilities that are
often improperly maintained and poorly guarded. These types of at-risk sources have the
potential to be stolen and used for malicious purposes, particularly in regions with high local
geopolitical tensions. Currently, there are tens of thousands of locations worldwide storing
radioactive sources. Some of these sources could be potentially employed for use in a
radiological dispersal device.
The response to this threat developed by some countries and by the IAEA is to assist for the
repatriation of sources from some developing countries to supplier States. Repatriation is
understood as arrangements for return of previously exported radioactive sources to a
Supplier States with special support or facilitation from that Supplier State’s government
16
.
So far, Canada, France, Russia and the USA have accepted these sources, acknowledging
12
See IAEA International Workshop on “Sustainable Management of Disused Sealed Radioactive Sources”, Lisbon, 11-15 October
2010, Report of the Chairman.
13
Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management.
14
Fourth Review Meeting of the Contracting Parties pursuant to Article 30 of the Joint Convention, 14 to 23 May 2012, Vienna,
summary report.
15
Global threat reduction source recovery efforts in Latin America, Ray Greenberg Jr, Julia Whitworth, Cristy Abeyta, Charles
Streeper, Jan-Marie Potier, Shelby Leonard, Off-Site Source Recovery Project, NNSA’s Global Threat Reduction Initiative, 2008.
16
Definition suggested during the technical meeting on the implementation of the Code of Conduct on the Safety and Security of
Radioactive Sources with regard to the Long term Strategies for the Management of Disused Sealed Radioactive Sources, Vienna,
February 27
th
to March 1
st
2012 (see the §13 of the chairman’s report).
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INTERNATIONAL NUCLEAR LAW ASSOCIATION • 2012 CONGRESS • 8 – 11 OCTOBER 2012 • MANCHESTER, ENGLAND
being the countries of origin of the sources. Approximately US$ 1 million has been for
instance invested by the Agency in repatriating sources to date.
Repatriation sets however many legal, technical and financial challenges.
The first one is the “country of origin” issue. When an abandoned or non-secured source is
identified in a country, the origin of the source has to be determined before planning a
possible repatriation. The identification of the origin of the source requires very often
technical investigations to access and dismantle the device containing the source, with
associated costs and radiological risks, and to do research in suppliers or manufacturers
archives. The concept of origin itself needs to be clarified: in some cases, the country that
manufactured the source, the country that supplied the source, the country that exported the
source and the country that could have donated the source can be different, and there is no
international instrument helping to define which is the country of origin of the source. Even
more complex situations can be identified:
• A source contained in a certain device is originally provided in a country “B” by a
supplier from a country “A”,
• After a few years, the source is repackaged in another device by a supplier from a
country “C” and it is further delivered for use in a country “D”.
In such a case, if it is considered necessary to repatriate the source from country “D” after a
few years for safety and security reasons, what would be the “country of origin” of the
source?
An international common understanding of the “country of origin” issue is clearly needed and
the 4
th
review meeting of the Joint Convention has consequently decided to increase the
discussions on that issue through the request for Contracting Parties to report on “the
retrieval approach, if any, of sealed sources considered as having a national origin from a
foreign state”.
Another difficulty of repatriation is the status of the disused source with respect to the
radioactive waste legislation in some supplier States. Indeed, some national legislation forbid
to import radioactive waste. If a disused source to be repatriated is already considered as a
radioactive waste by the State of origin of the source, the authorization to repatriate the
source can be very difficult to obtain as it can be considered as an import of foreign
radioactive waste
17
.
The international transport regulation is also a major challenge for sources repatriation. The
“special form” certificate of the sources to be repatriated has often expired, so that the use of
packages under international agreement of transport is often very difficult. The solution to
request special arrangements for the transports can be used but these special arrangements
have then to be requested in every countries crossed by the transport. As a consequence,
transport part of repatriation projects can be a significant technical and administrative
burden.
17
In some countries like in France, it has however been considered that the article 28 of the Joint Convention was covering this
case. The article provides that “a Contracting Party shall allow for reentry into its territory of disused sealed sources if, in the
framework of its national law, it has accepted that they be returned to a manufacturer qualified to receive and possess the disused
sealed sources”.
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All these difficulties contribute to increase the cost of project of repatriation and contribute to
the conclusions that repatriation of radioactive sources can only remain the very last option
for the management of DSRS.
To respond efficiently to legacy should off course remain an international priority but it is
maybe even more important to ensure a sustainable management of disused sources in the
future to avoid these legacy problems in the future.
III. Toward a sustainable management of disused sources?
The management of disused source has to take into account of two fundamentally different
environments for the management of sources and for the management of radioactive wastes:
• The market of radioactive sources is international, it relies principally on international
companies which manufacture, sell, store, import, and export the sources from
countries to others. The market is regulated by authorities through authorizing these
activities and these transfers according to the recommendations of the Code of
Conduct and related guidance on import and export.
• The management of radioactive waste is mainly regulated at national levels, with well
defined roles and responsibilities, in accordance with the polluter-pay principle and
other national policies. The European directive on radioactive waste and spent fuel
management stipulates for instance the prime responsibility of generators and the
ultimate responsibility of each Member State for the management of waste generated
on its territory by ensuring that appropriate national arrangements are taken to
guarantee a high level of safety to protect workers and the general public against the
risks arising from ionising radiation
18
. Although transboundary movements of
radioactive wastes are framed by the Joint Convention and not forbidden, these
movements remain in practice very limited, except for reprocessing purposes.
This decision to classify a DSRS as a radioactive waste has consequently strong legal and
practical implications concerning the possibilities to import/export the source and to the
extent that it is generally an ultimate regulatory decision.
According to the Code of Conduct, “every State should encourage the reuse or recycling of
radioactive sources, when practicable and consistent with considerations of safety and
security”. As end users don’t have the technical capacity to do the necessary controls for
reuse of the sources or to recycle them, the objective set in the Code can only be achieved
through the retrieval of sources by suppliers and manufacturers, including, when necessary
through import/export of the disused sources.
To achieve this intended purpose, two ways can be indentified:
• In case of reloading of a device with a new radioactive source, a one-for-one source
exchange of the disused source is a common practice of the industry (the disused
source being taken over by the supplier of the new source). This practice, when
generalized, would ensure very simply a process of management of the disused
sources by the international market during the life-time of industrial activities.
• The Code of Conduct further encourages the attachment in Licenses of “clear and
unambiguous conditions” concerning, “where applicable, agreements regarding the
18
Council Directive 2011/70/Euratom of 19 July 2011 establishing a Community framework for the responsible and safe
management of spent fuel and radioactive waste.
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possible return of decayed/disused sources to a supplier”. Many countries like
France have established a licensing policy of not accepting the import of a sealed
source unless its return to the manufacturer or supplier is guaranteed. This “right of
return” to the previous supplier in the supply chain, until the manufacturer, implies
conditions to be included in the private contracts. The related requirement for the
suppliers and manufacturers is not to finance the whole management of DSRS but to
offer Technical solutions for taking back the source on a fee for service basis.
Consequently, the cost of the return remains under the responsibility of the
user/owner of the source. It has to be noted that the implementation of the “right of
return” is easier when a life-time for supplied source is defined by the regulation
19
.
Suppliers and manufacturers have indeed to maintain a technical capacity to be able
to recover DSRS, as long as owners of sources can exercise their “right of return”.
These both practices can help to reduce drastically the remaining DSRS in a country
20
and
they could consequently become an international legally binding requirement or, a minima,
be included in a revised version of the Code of conduct.
In some cases, no option to value disused sources on the market through reuse or recycling
can be identified, either because they can not be recycled any more for technical or financial
reason, either because no customer can be found on the market for the type of radionuclide of
the sources or due to the bankrupt of one of the actor of the supply chain which would have
been legally responsible to take over the source (user or supplier). In such a case, there is
often no other option as to manage the disused sources as radioactive waste.
As we described it above, the repatriation can not be seen as an alternative sustainable
management solution, even for less advanced countries. Therefore each country must
develop and implement comprehensive domestic solution for the end-of-life management of
radioactive sources, with the expectation that they may remain in the country indefinitely
21
.
The adequate infrastructure for managing disused sources as radioactive waste is to be
provided on a fee for service basis when no other option for reuse or recycling through the
industrial market is available.
Conclusion
The Code of Conduct on the Safety and Security of Radioactive Sources together with its
related guidance on import and export, and the Joint Convention on the Safety of Spent Fuel
Management and on the Safety of Radioactive Waste Management are important instruments
to govern the safety and the security of the life cycle of radioactive sources.
However, on the one hand, the legal status of the Code of Conduct remains very weak,
despite the large political commitment expressed for its implementation. On the other hand,
the issues concerning the management of DSRS are very partly addressed by both
19
Ten years, with possible extensions up to twenty years for instance in France
20
As an exemple, less than 10% of DSRS remain for instance in Japan, 90% being returned to foreign suppliers (Statistics from the
Ministry of education, culture, sports, science of technology of Japan).
21
See “policies & strategies for Lifetime Management of Radioactive Sources”, in the report of the chairman of the IAEA
International workshop on “Sustainable Management of Disused Sealed Radioactive Sources”, 11-15 Octobre 2010
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instruments, while this management is recognized as being the weakest point in the
regulation of the life-cycle of radioactive sources.
The principle to return radioactive sources to the suppliers and to the manufacturers once
disused increases considerably the potential for recycling and reuse of the DSRS on the
market. This principle could however only be efficiently implemented worldwide through
new international legal instruments, or, a minima, through a revision of the Code of Conduct.
For number of reasons, however, many DSRS cannot, in some cases, be returned to the
previous suppliers or to the manufacturers, reuse or recycled. Consequently, sustainable
management of DSRS would require that the classification of DSRS as radioactive waste
remain an option of management at all stages of the supply chain of radioactive source. This
decision should however remain the result of the lack of any further possibility to recover the
disused source on the international market through reuse or recycling.
Consequently, every country using radioactive sources has the responsibility to develop
domestic solution for the management of DSRS, as radioactive waste, as a last resort, and
provide adequate legal and financial provisions accordingly.
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