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Functional organization
of radiation protection

Regulatory reminders

 

Since the publication of the of thedecree no. 2018-437 of4 June 2018 relating to the protection of workers against the risks due to ionizing radiation, several regulatory texts have been published in the Official Journal:

 

 

  • Decree 2019-190 of 14 mMarch 2019  codifying the provisions applicable to basic nuclear installations, the transport of radioactive substances and transparency in nuclear matters

 

 

  • Decree of 20 Feblaugh 2019  relating to information and health recommendations to be disseminated to the population in order to prevent the effects of exposure to radon in buildings

 

  • Order of 26 fFebruary 2019  relating to the methods of managing radon in certain establishments open to the public and the dissemination of information to people who frequent these establishments

 

 

 

 

  • Order of January 28r 2020 amending the order of 15 May 2006 modified relating to the conditions of delimitation and signage of supervised and controlled areas and specially regulated or prohibited areas taking into account exposure to ionizing radiation, as well as health and safety rules and maintenance imposed thereon

 

This legal framework seems complex to implement, especially for the many VSEs/SMEs concerned. But the objective for employers is to “better integrate the radiological risk into the general approach to preventing incidents and accidents in order to optimize the means implemented in collective and individual work equipment. and the Radiation Protection Advisor is at the heart of this prevention.

The new article R4451-5 of the Labor Code is clear on this subject by providing that "in accordance with the general principles of prevention set out in article L4121-2 of this code and the general principles of radiation protection of persons set out in articles L1333-2 and L1333-3 of the Public Health Code, the employer takes preventive measures aimed at eliminating or reducing to a minimum the risks resulting from exposure to ionizing radiation, taking into account technical progress and the availability of measures control of risk at source”. The section entitled “radiation protection principles” is thus renamed more simply “prevention principles”.

In concrete terms, this does not fundamentally change things because the overall prevention approach always requires coupling the 3 ALARA principles of radiation protection, namely the requirements of justification, optimization and limitation. However, the responsibility that weighs on the employer in the implementation of these prevention rules is reinforced by the desire to "refocus regulatory obligations on performance obligations", according to the terms of the press release from the DGT. The employers concerned are now under an obligation to bring their radiation protection organization into compliance to take account of these changes.

 

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Appointment of Advisorin radiation protection

 

The radiation protection organization is defined in the new articles R4511-111 et seq. of the Labor Code. It is automatically imposed on the employer, the head of the external company or the self-employed worker "when the nature and extent of the risk of worker exposure to ionizing radiation lead him to implement at least one of the following measures:

  1. the worker classification (Unclassified, A or B category).

  2. the delimitation of the exhibition or operation zone.

  3. mandatory verifications of means of prevention (equipment, sources, workplaces and vehicles. » 

As part of this organization, a Radiation Protection Advisor is appointed by the employer. It is specified that in the absence of a designation of Radiation Protection Advisor, the employer is required to seek the assistance of the "safety referent", employee or IPRP designated under Article L4644-1 of the Labor Code , to assess the risks associated with ionizing radiation.

The position of Radiation Protection Advisor cannot be exercised by the employer himself (except by way of derogation in companies with less than 20 employees, when the risk assessment excludes any risk of internal exposure and he is himself - same holder of the “PCR” training certificate (Labour Code art. R4451-117).

The organization of radiation protection can call on 3 types of contributors:

  • the person competent in radiation protection designated internally (see current PCR, it being specified that several PCRs can be designated within the same organization provided that they are grouped together within an internal entity with suitable resources).

  • the Competent Organization for Radiation Protection (OCR, legal entity which will replace the current external PCR).

  • the radiation protection skills center authorized by ASN, specific to basic nuclear installations.

The employer's advisory role is reinforced with regard to these people or organisations, and is based in particular on risk assessment.

 

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Definition of the missions of the Radiation Protection Advisor

 

The intervention of the Radiation Protection Adviser is based on a written act of designation, which must record "black on white" the procedures for carrying out the missions that the employer has defined, in terms of the volume of time allocated (discharge from "professional ") and the means made available (see technical and material means, training, but also concerning the confidentiality of worker exposure monitoring data, in particular in the context of the new possibility of exchanges with the occupational physician information protected by professional secrecy).

In any case, the definition of the missions themselves cannot be adjusted by the employer, since they are fixed by the new article R4451-123 of the Labor Code and grouped into 3 blocks:

  • Advise the employer (workplaces, safety devices; periodic verification programs; individual exposure monitoring; dosimeters; classification of workers; radiological zoning; radiological emergency situations).

  • Contribute to certain operations (risk assessment -cf. R4451-13 s.-; means of prevention; assessment of individual exposure; individual protection measures; safety training and information; monitoring of individual exposure; coordination of preventive measures in the event of an operation generating interference with an external company; decontamination of workplaces; investigations and analyzes in the event of significant events).

  • Execute or supervise certain operations (measurements in the workplace; verification of the effectiveness of certain means of protection).

It should be noted that “co-designation” by the person responsible for the nuclear activity is possible; as such, the Radiation Protection Advisor is assigned missions that are partly different (see CSP, R1333-18 s.). The radiation protection adviser will thus see his missions extended to the radiation protection of the public and the environment, which requires appropriate means. In any case "the advice given by the radiation protection adviser under 1° of I of article R1333-19 of the public health code can be regarded as being advice given under I of article R4451-123 when they relate to the same subject” (cf. Labor Code, article R4451-124 II – the same rule is provided in mirror article R1333-19 III of the Public Health Code).

 

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Respective responsibilities of the Radiation Protection Advisor and the Employer

 

The Radiation Protection Advisor's recommendations must be recorded in writing on a durable medium (minimum 10 years of conservation). This organized traceability is not without consequences from the point of view of the respective responsibilities:

  • On the one hand, the recommendations are intended to feed into the report and the annual risk prevention program submitted to the CSE.
    It should be noted that the CSE must be informed and consulted beforehand, not only on the designation of the PCR as was the case hitherto, but more generally on the organization put in place in terms of radiation protection (Labour Code art. 4451-120 – it should be noted that this extended advisory competence is of public order and cannot be adjusted by means of a company agreement on the functioning of the CSE).

  • On the other hand, this will constitute a key document in the event of criminal proceedings for non-compliance with the regulatory requirements of the Labor Code, with or without an industrial accident or occupational disease.
    It should be noted on this subject that if, like the current PCR, the Radiation Protection Adviser holds a skill (certified by certificate) and appropriate resources, he does not appear to be able to delegate powers in the criminal sense of the term. Indeed, the Labor Code is clear: it only contributes to the protection of the health and safety of workers, always “under the responsibility of the employer”. Criminal liability therefore appears to be non-transferable, also for lack of sufficient power of authority (which is to be distinguished from the criterion of independence with regard to the production departments, which on the contrary relates to the means), and knowing that very often in practice, the insufficiency of the means is often invoked to defeat the consequences of the delegation of powers.

Employers must therefore be particularly vigilant: the appointment of a Radiation Protection Advisor does not exonerate them from their criminal liability in the event of personal fault, both in the case of employers who are natural persons (heads of companies or establishments) than legal persons (even if here the rules of criminal liability are specific).

That being said, the PCRs are fully responsible professionals, whether they intervene within the framework of their employment contract or under the provision of services.

At the same time, Radiation Protection Advisors do not benefit from immunity in the event of a breach, which may result either in a revocation of the appointment, or in the implementation of disciplinary powers, or in the initiation of criminal proceedings ( in the event of fault of non-compliance with regulatory requirements – see Labor Code, L4741-9 – or in the event of an offense involving risks caused to others – Penal Code, article 223-1 – or even an offense of involuntary injury attributable to gross or deliberate fault). In the event of an external service, the contractual civil liability of the OCR may also be called into question by their employer client, in the event of a lack of advice, accompanied, if necessary, by termination of the contract.

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Conclusion

 

Compliance with this new regulation must therefore be seen, beyond the regulatory constraint, as an opportunity for security, including in the legal field for employers and operators. This is an opportunity to identify existing weak points and improve the organization for more robust security on a daily basis. Among all the subjects to be covered, let us mention the interventions of external companies, which require very special attention. This will also be a very specific security issue in the perspective of future operations to dismantle nuclear facilities, which will mobilize a large chain of economic actors.

The implementation of the new regulations is also an opportunity to carry out a diagnosis. This diagnosis can lead to a less restrictive organization without compromising safety. Indeed, as we saw at the beginning of the article, today, the regulations leave more latitude to the employer in the organization of radiation protection with the obligation to demonstrate that he meets the obligation of result.

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Sources:

  • Article Sébastien MILLET (Lawyer specializing in labor law, social protection and occupational risks).

  • Communication Thierry LAHAYE (Scientific and technical adviser – Sub-directorate for working conditions, health and safety at work – General Directorate for Labour)

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