RWMAC Annual Report 2001/2002

Chapter 3: Regulation of radioactive waste

The current state of radioactive waste management regulation

3.1 In the UK, the Health and Safety Executive (HSE) is charged with regulating the safety of nuclear plant. It does so through a system of licensing of nuclear sites. Day to day responsibilities under the Nuclear Installations Act 1965 (NIA65) are delegated to the Nuclear Installations Inspectorate, an arm of HSE. These responsibilities include regulation of the accumulation and storage of radioactive wastes on nuclear licensed sites.

3.2 The disposal of wastes from nuclear sites - including the transfer of solid wastes for burial, incineration or storage elsewhere, as well as the discharge of liquid and gaseous wastes to the environment - is the regulatory responsibility of the two environment agencies under the Radioactive Substances Act 1993 (RSA93). (For wastes arising on non-nuclear sites, the Act gives the environment agencies responsibility for both accumulation and disposal.) The storage of wastes on nuclear sites, and the conditioning and packaging that may be necessary to enable its safe management into the future, represent the point at which a regulatory interface exists between the HSE and the environment agencies. As chapter 2 made clear, this can pose difficulties that need to be resolved.

3.3 This regulatory system has generally served the UK well over a number of decades. But there is always room for improvement, particularly at times when organisational arrangements and levels of expectation are changing. The recommendations of a number of RWMAC reports published in recent years have, the Committee believes, pointed towards work that would help to develop and underpin good regulation. They have, for example, recommended that:

• the Government should clarify its policy for radioactive waste management for the short and medium term in order to fill the gaps in guidance that currently exist (see paragraphs 2.15-2.17);
• instilling a sense of common purpose and responsibility among regulators and operators is a prerequisite to plans for the restoration of major nuclear sites and the discharge of liabilities ¹;
• a fuller statement is needed of the ground rules employed by EA and SEPA in granting disposal authorisations under RSA93, including setting discharge limits ²;
• standards should be developed, based on the widely accepted concept of tolerable risk, that can be applied widely (and consistently) by the regulators to radioactive waste management and associated activities such as the clean up of radioactively contaminated land ^{3, 4,} .

3.4 The UK's current regulatory arrangements have been the subject of comments by various bodies, and in various published reviews, in recent years. For example, in its March 1999 report The Management of Nuclear Waste ⁵, the House of Lords Select Committee on Science and Technology commented on regulatory tensions in respect of the conditioning and packaging of radioactive waste on nuclear licensed sites. A number of observations on the regulation of radioactive substances and wastes were contained in the May 2000 report on the Environment Agency by the House of Commons Environment, Transport and Regional Affairs Committee ⁶. Lastly, the outcome of the Financial, Management and Policy Review (FMPR) of EA, made public by the Department for Environment, Food and Rural Affairs and the National Assembly for Wales in March 2002 ⁷, also made a number of observations on issues of regulation, commenting, in particular, on the potential for tensions to arise in the regulatory relationship between EA and HSE.

3.5 In addition, RWMAC and NuSAC were asked by Ministers to undertake a joint study of regulatory issues - a "Regulatory Review" - as part of the 2001-2002 work programme. This set out to examine the high-level principles underpinning radioactive waste regulation and the extent of common ground between the approaches of the environment agencies and the HSE. This advice will be submitted to Ministers and the Health and Safety Commission later in 2002.

3.6 The remainder of this chapter reports on the ongoing work by the HSE and the environment agencies to improve their regulatory processes and interactions. It then summarises the outcome of the Regulatory Review.

Regulatory body initiatives

3.7 During the period covered by this report, the following regulatory body initiatives have been noted by RWMAC. The intent of these initiatives is welcomed by the Committee.

(a) Agreements

The responsibilities of EA/SEPA and HSE in relation to licensed nuclear sites, and the interface between them, are defined in "Memoranda of Understanding" (MoU). These documents set out the procedures governing the working relationship as it relates to the regulation of nuclear safety and of the disposal and discharge of radioactive wastes on or from nuclear sites. For a given regulatory function, they define which organisation has primary regulatory responsibility and which has secondary responsibility. In its response to the FMPR of EA, RWMAC said that, in its view, the MoU between EA and HSE had not always worked well and that this could have a detrimental effect on regulation. It recommended that the MoU should be subject to formal review. The FMPR Stage 1 Report (August 2001) also called for a review of the MoU arrangements and better and more formal delineation of EA-HSE boundaries.

As a result, an updated MoU was agreed by EA and HSE and promulgated in April 2002. This complements and expands on a high-level "Statement of Intent" signed by the two organisations in August 2001. The MoU sets out:

"How the regulatory regimes of HSE and EA will be coordinated to achieve the goals set out in the Statement of Intent. .. .. It specifies the roles and responsibilities of HSE and EA, highlights the operative legislation, and details the working arrangements .. .. in order to facilitate effective and consistent regulation".

Arrangements between SEPA and HSE, under the MoU signed in March 2002, are fundamentally similar. The SEPA-HSE MoU stresses the importance of eliminating the possibility of conflicting requirements being placed on operators and of minimising duplication of regulation. There is provision for a senior Joint Review Committee to meet to discuss disagreements, which cannot be resolved at site regulatory level.

(b) Organisation of regulatory activities

With effect from June 2002, in light of the final conclusions of the FMPR, EA instituted an organisational change to develop delivery of its regulatory activities with regard to radioactive substances. Site-based regulators now report to two Nuclear Regulation Groups based in Cumbria and Berkshire. The aim is said to be to achieve consistent regulation, integrate activities, and make optimum use of staff resources, including nuclear specialists.

In July 2002, the Scottish Executive (SE) launched a Policy and Financial Management Review (PFMR) of SEPA. (This has analogous terms of reference to the review of EA described above.) A consultation paper sought views on the Agency's performance in environmental protection. RWMAC responded to SE in September 2002. The Committee's views on the PFMR are summarised in chapter 6.

HSE is producing a Strategic Plan for its Nuclear Safety Directorate, which will define its aims and objectives and identify performance indicators.

(c) EA-HSE joint meeting with industry

In November 2001, EA and HSE hosted a seminar designed to facilitate discussion of past regulatory problems identified by the nuclear industry. There were representatives from industry, SEPA and government departments, as well as EA ad HSE. The aim was to improve understanding of the high-level regulatory boundaries between the regulators - leading to a more "joined-up" approach and more cost effective regulation.

A number of historic case studies were submitted for discussion by industry. They reflected two of the major areas of tension associated with the current regulatory systems - how the concept of the tolerability of risk from exposure to radiation can be reconciled with policy requiring downward pressure on discharges; and how early conditioning of solid wastes to achieve passively safe storage relates to the need to avoid foreclosure of eventual disposal options.

The seminar raised some highly interesting issues, not least in terms of RWMAC's own work. In particular, the two areas of tension, and potential conflict, referred to above, came to be central features of the findings of the two RWMAC-NuSAC studies: the Regulatory Review and the report on ILW Conditioning, Packaging and Storage (see chapter 4).

The NuSAC/RWMAC Regulatory Review

3.8 At the time of preparation of this Annual Report, the final report of the NuSAC/RWMAC Regulatory Review was still in the course of preparation. The review comprised a general review of the structure of, and principles behind, the current UK regulatory arrangements. It focused primarily on regulation for nuclear safety and for environmental protection on civil nuclear licensed sites, with only limited reference to non-nuclear sites, although many of the principles identified and recommendations made apply equally to the totality of UK operations involving radioactive materials.

3.9 The study reviewed the legal basis for regulation of relevant areas of operations, identified the regulatory principles adopted by the regulators - HSE and the environment agencies, and considered current UK regulatory policy and practices in this light.. It also noted a number of ongoing initiatives that could ultimately impinge on such policy and practice, including reviews of radiation dose assessment methodology, consideration of the health effects of low-level radiation, the impact of radiation on non-human species and associated environmental habitats, and the remediation of radioactively contaminated land.

3.10 To help assess the strengths and weaknesses of the current UK regulatory system, the two committees sought to identify the characteristics of an ideal system, concluding that:

• it is based on a coherent and up-to-date legislative framework coupled with a clear and comprehensive set of Government policy statements for nuclear safety and environmental protection;
• its individual elements are consistently and compatibly formulated (i.e., it is holistically constructed);
• it has a basis of sound science that is applied in a coherent and consistent manner;
• it delivers public, worker and environmental safety in a proportionate and cost-effective way;
• it is applied in an open and transparent manner.

Both the nuclear safety and environmental protection regulatory systems should be seen to satisfy these requirements.

3.11 NuSAC/RWMAC also considered the basic principles identified as underlying the regulatory regimes for nuclear safety and environment protection in order to assess whether they achieve optimum commonality and consistency. The principles cover issues such as protection of people and the environment, treatment of risk, use of up to date technology, and proportionality and cost-effectiveness. The Committees also looked at the availability of methodologies for ensuring successful practical delivery of these principles.

3.12 The initial findings of the regulatory review work were set out in the Government's Managing the Nuclear Legacy White Paper published in July 2002 ⁸.

• there are areas where amplification of current Government policy, particularly, where required, in guidance to the regulators, would enhance clarity and consistency with respect to principles and methodologies and make the task of the regulators more straightforward;
• the regulatory bodies, in conjunction with Government, should continue to look for a greater commonality of approach in order to promote effective and efficient regulation: taking account of cost and benefits is a central tenet of the Government's strategy for sustainable development.;
• there is additionally a need for greater clarity about the extent to which some regulatory decisions reflect factors other than risk, and the way in which risk-based and non-risk-based criteria are balanced in order to arrive at proportionate regulatory decisions; and
• there is a lack of clarity about the way in which regulation is applied at very low radiation dose levels.

The final report of the NuSAC/RWMAC regulatory review work is due to be published in late 2002, and will make recommendations aimed at addressing issues such as these.

References

¹ The Radioactive Waste Management Advisory Committee's Advice to Ministers on Restoration of the UKAEA Dounreay Nuclear Site, Department for Environment, Food and Rural Affairs, September 2001.

² The Radioactive Waste Management Advisory Committee's Advice on Issues which Need to be Addressed in the Guidance to be Given to the Environment Agencies on the Principles for Determining Radioactive Waste Discharge Authorisations - the "Principles Document", Department of the Environment, Transport and the Regions, London, July 1998.

^3,4 The Radioactive Waste Management Committee's Advice to Ministers on the Ministry of Defence's Arrangements for Dealing with its Radioactively Contaminated Land, Department of the Environment, Transport and Regions, August 2000; and The "Regulatory Review": advice for Ministers and the HSC undertaken jointly by the Radioactive Waste Management Advisory Committee and the Nuclear Safety Advisory Committee (to be published).

⁵ Management of Nuclear Waste, Report of the House of Lords Select Committee on Science and Technology, The Stationery Office, March 1999.

⁶ House of Commons - Environment Transport and Regional Affairs Committee, Sixth Report: The Environment Agency, The Stationery Office, May 2000.

⁷ Financial Management and Policy Review of the Environment Agency, Department for Environment, Food and Rural Affairs, March 2002.

⁸ Managing the Nuclear Legacy, a strategy for action (Cm 5552), Department of Trade and Industry, July 2002.