RWMAC Annual Report 2001/2002

Chapter 6: Other consultation responses made by RWMAC

6.1 The 21st RWMAC Annual Report ¹ included a chapter on responses made by the Committee to public consultations carried out by various bodies on radioactive waste management, radiological protection, and related issues. Four such responses were made in that year and seven during 2001-2002. The latter are summarised in this chapter which, for convenience, also describes a number of areas of work by other organisations in which RWMAC members participate. It needs to be stressed that the latter are standing bodies or working groups on which the members concerned represent RWMAC; circumstances where members act in a private capacity are not included. The members representing RWMAC are expected to report back to the Committee on a regular basis.

6.2 Full versions of all the following responses are available on request from the RWMAC secretariat office.

Maximum Permissible Limits

6.3 In September 2001, RWMAC responded to a consultation by the Food Standards Agency to inform the UK's position on outline proposals by the European Commission (EC) to set maximum permissible limits (MPLs) on all foodstuffs sold in the European Union. It was apparent that the concept of MPLs ultimately derives from Community Food Intervention Levels (CFILs) introduced following the Chernobyl nuclear accident in relation to radiocaesium contamination.

6.4 In its response, RWMAC argued in favour of determining appropriate controls by means of a measured, back-to-basics, process, taking account of sound science. The Committee opposed basing a new system on existing EC Regulations introduced to deal with post-accident situations. Rather, it should adopt a risk-based approach predicated on an agreed upper limit of whole body equivalent radiation dose. RWMAC stressed the importance of consistency with the EC Basic Safety Standards (BSS) Directive, the EU legislation designed to secure the protection of human health from the effects of radiation, including the need to take into account the varying toxicity of individual radionuclides. The response also raised the issue of additivity (relating to the way in which whole body dose derives from the impact of individual radionuclides on different parts of the body), and emphasised that the limits should apply only to artificial and technologically-enhanced natural radionuclides, not natural background radiation levels. It pointed out that care needed to be taken, in light of the UK Government's draft statutory guidance to EA on the regulation of discharges to the environment from nuclear licensed sites (see paragraph 2.4), to ensure that the limits would be compatible with those set by the regulators for routine discharges.

The Natural Gas Exemption Order

6.5 Defra undertook public consultation, in September 2001, on its proposal for an Exemption Order in relation to the commercial use of natural gas. Exemption Orders (which are secondary legislation made under RSA93) exempt certain practices involving, and classes of, radioactive materials and wastes from individual regulatory control where these are not deemed to be of significant radiological concern. The levels of activity in natural gas meet the definition of radioactive material in RSA93 and would, unless exempted, require registration of commercial users under the terms of the Act.

6.6 RWMAC supported the proposal to make a Natural Gas EO. However, the response raised significant concerns held by the Committee about the adequacy of information for the public in the consultation material. In particular, RWMAC pointed out that references such as "the Government does not believe that levels of radioactivity found in natural gas .. .. present a danger to public health" and "no radiation danger" could not be judged against any yardstick of the impact of radiation exposure on human health, since no information of this kind was included in the consultation material. It was disappointing that there was no attempt to explain the provisions of the BSS Directive since RSA93 and its system of EOs are promoted by the Government as satisfying it.

6.7 The response also criticised the Government for reference, in its consultation material, to work that was not, at the time, publicly available. RWMAC noted that this work suggested a critical group dose, for those most exposed to radioactivity in natural gas, of "some tens of microsieverts" per year. RWMAC pointed out that this level of exposure implied that exemption of natural gas was not an exercise in which matters of significant radiological concern were, on the face of it, excluded. The consultation should, therefore, have been supported by appropriate arguments and reference to established data, including widely-accepted standards of radiological protection. The response then drew attention to the very detailed consideration given by the regulators to authorising routine discharges from nuclear sites that result in exposure of the critical group at levels below the figure. Reference to "no radiation danger" was not helpful in view of work by HSE to define the meaning of this phrase in connection with the delicensing of nuclear sites.

6.8 RWMAC suggested that further examination was needed of the significance of concepts such as "exposure that is sufficiently low as to be of no regulatory concern" ² and the findings of work such as the CERRIE study (see paragraphs 5.27-5.28). This would be necessary as part of work to set the system of EOs within the clearly stated and easily understood regulatory framework supported by the Committee. It would also obviate the need for individual EOs to be dealt with in a disjointed and piecemeal fashion as in the present case.

6.9 The Natural Gas EO came into force in May 2002. RWMAC is disappointed that the Government's response to the results of the consultation did not appear to acknowledge the validity of the Committee's main concerns.

Guidance on management of contaminated land

6.10 Chapter 8 of the 21st Annual Report provided a summary of the Committee's views on the need to take forward work to establish a statutory and regulatory regime for the control and remediation of radioactively contaminated land. No announcement has come from the Government during the last 12 months on its proposals to seek Parliamentary approval for the Regulations necessary to achieve this. In May 2002, EA made public its Guidance on Characterisation and Remediation of Radioactively Contaminated Land. RWMAC welcomes this, but reiterates its view, made in comments on an earlier draft of the EA material and repeated in the 21st Annual Report, that the value of such work will continue to be limited as long as there is no clear statement of Government policy for this area.

6.11 Similar reservations apply, therefore, to consultation by CIRIA (a research association part funded by government departments), as part of its Safegrounds Learning Network, of draft Good Practice Guidance for the Management of Contaminated Land on Nuclear and Defence Sites. The Safegrounds work looks at both radioactive and non-radioactive contamination.

6.12 RWMAC responded to the Safegrounds consultation in May 2002. It was clear that the draft guidance was predicated to a great degree on stakeholder views. The Committee agrees that stakeholder support is necessary for the successful completion of clean-up schemes. However, it criticised the guidance for the belief that stakeholder dialogue can resolve, or even substitute for, issues that need to be determined as part of national policy. Critically, these include the need for guidance on the definitions and criteria appropriate to the identification, control, and remediation of radioactively contaminated land that will be acceptable to the regulators. They also include the scale of consultation that is appropriate in each case, how all the management options are to be identified and evaluated, and whether expenditure on clean-up, in time, money, and effort, is cost-effective.

6.13 These doubts can be illustrated in relation to two separate, although closely linked, statements in the draft guidance that were challenged in the Committee's response. The Safegrounds guidance suggested that a residual (post-remediation) risk factor of 10^-6/y would not necessarily represent a high degree of protection. RWMAC's response sought an explanation for this view, which, it pointed out, was inconsistent with the widely accepted concept of the tolerability of risk applied by HSE ³. The guidance also advanced a view that the level of protection should instead derive from the land management option selected. RWMAC believes that such an approach could result in an unacceptable level of risk in some cases and a net disbenefit, taking account for example, of cost and disruption, in others, particularly where the risk is already de-minimis.

6.14 In line with advice offered elsewhere, including to the Government itself, the RWMAC response recommended the adoption of clear, risk-based, clean-up criteria, enshrined in national policy. Without this, the Committee felt that the Safegrounds approach of identifying solutions for individual sites, based on stakeholder agreement, was a recipe for inconsistent decision-making and potential confusion.

Consultations on planning issues

6.15 Chapter 11 of the 20th Annual Report set out RWMAC's view on the Modernising Planning consultation document ⁴, part of the process launched by the Government to look at what might be done to facilitate more rapid consideration of development proposals by the planning system. The Government's proposals, applying to England only, were subsequently set out in a new Planning Green Paper ⁵ and, in relation to major projects, in a related document New Parliamentary Procedures for Processing Major Infrastructure Projects ⁶. RWMAC's response to the latter was made in March 2002.

6.16 RWMAC drew on what it had said in relation to the Managing Radioactive Waste Safely proposals for radioactive waste management facilities - recommending use of a consensus-building approach, involving wide and open discussion of the issues. It reaffirmed that, in order to see the development of major projects through to fruition, a structured process of deciding policy was first needed, based on open and inclusive public debate and sufficient time for resolution of issues. The planning system, in addition to protecting the environment, must ensure that sufficient time is allowed for debate to enable effective decisions to be taken, the public interest is upheld, and democratic political processes at all levels are protected.

6.17 Although some planning inquiries for major projects have undoubtedly taken too long, the response warned against replacing a fundamentally successful planning system with one that might diminish participation and democratic accountability. In particular, the move to replace structure plans, prepared by elected County Councils, with regional and sub-regional plans, before directly elected regional government bodies are in place, introduced the potential for "democratic deficit" in decision-making at the local level.

6.18 The involvement of Parliament was welcomed in that it would provide continuity for the management of major projects for the lengthy periods over which several Government administrations might hold office. In the Committee's view, however, the proposals needed to be developed further.

6.19 First, the list of major infrastructure projects to be subject to the new procedures should be agreed by Parliament. This would add to the legitimacy of the process. The Government would then be required to demonstrate that, for each one, there was a clearly stated policy that had been subject to appropriate public consultation and debate. This would help to clarify discussions at the national level.

6.20 Second, further consideration should be given to what would be necessary to support the Parliamentary procedures. A range of mechanisms was possible. This included a Project Plan setting out the key decision points, including securing planning and regulatory consents, and defining responsibility for taking them. The plan could also indicate the points at which there was a need for reference back to Parliament to endorse the decisions. There might also be a case for an Overseeing Body (see paragraph 2.10) to provide information to feed into the public debate, commission research, and identify, evaluate, and advise on the various options. In other words, the body would quality assure the information placed before Parliament.

6.21 Third, care needed to be taken, in relation to major projects placed on a planning "fast track", that the legitimate interests of, for example, local authorities, stakeholders, and the public itself, should not be excluded. There was little detail in the consultation document on how involvement of this kind was to be provided for. The response also pointed out that the timetable for allowing both public and Parliamentary debate to take place appeared wholly inadequate.

6.22 Last, it would be necessary to retain a forum for public debate at local level. The public inquiry should continue to play a key role in the arrangements since national and local issues could not always be disentangled. On a related issue, RWMAC indicated that it could not support reduction in the scale of public debate, as the proposals inferred, since broad-based stakeholder participation was necessary to support the progress of major projects, and lack of opportunity for consultation could increase the likelihood of challenge, including under the provisions of the Human Rights Act 1998.

6.23 It appears that the Government has now given thought to revising its proposals. In July 2002, the Office of the Deputy Prime Minister (ODPM) published its response to the consultation on the Planning Green Paper and to the Report on that subject by the then Transport, Local Government and the Regions Select Committee. ODPM recognised the concerns about MPs time, the supporting resources needed by Parliament, and the principle of Parliamentary involvement in the detail of development proposals. It is not intended that this element of the package will be pursued. However, the Government still appears to be committed to speeding up the planning process by means of statements of national policy on the need for a specific investment.

6.24 Subsequently (May 2002), RWMAC responded to a consultation by the Department of Transport, Local Government and the Regions (DTLR) on draft planning technical advice relating to development on land affected by contamination. This advice is intended to replace the existing guidance on contaminated land contained in Planning Policy Guidance Note 23 (PPG 23) Planning and pollution control: other elements of PPG 23 are currently subject to consultation. DTLR made clear that because decisions on the future use of contaminated land falls to the planning system, and redevelopment will often finance the remediation scheme, contamination will be a material consideration in the application. The draft advice is, among other things, designed to ensure that any unacceptable risks are managed safely and that new development and land use are safe.

6.25 RWMAC drew the DTLR's attention to the conclusions of its advice to Ministers on the management of radioactively contaminated land owned by the Ministry of Defence (MoD) ⁷, in particular the Annex Efficacy of the Planning System in Dealing with Radioactively Contaminated Land, commenting that this is relevant to contaminated land of all kinds. It dealt with questions of early identification of contamination, the limitations of planning conditions in guaranteeing an adequate level of clean-up, and the need for comprehensive records on the contamination, and its subsequent remediation, to be kept, including the benefits of a national register.

The proposed Health Protection Agency

6.26 In January 2002, the Department of Health (DoH), which has policy responsibility for England and Wales (matters of health policy in Scotland are mainly devolved to the Scottish Executive) issued a consultation paper on proposals to establish a Health Protection Agency (HPA). The rationale behind the proposals is to create a unified body to provide more effective support for health protection and emergency planning in order to protect the public from infectious diseases and environmental hazards.

6.27 In its response, RWMAC indicated that it did not oppose the setting-up of the HPA per se, recognising that, for example, there could be benefits for health emergency planning. The Committee does not, however, support the proposed incorporation of the National Radiological Protection Board (NRPB) into the HPA, believing that, as far as radiological protection work is concerned, the benefits of the proposals are outweighed by the disadvantages.

6.28 The points made in the response to the HPA proposals can be summarised as follows. It is vitally important for the success of the Managing Radioactive Waste Safely initiative that easily understandable information on waste hazards and risks is made available to the public. In its comments on the MRWS consultation document ⁸, the Committee said:

" .. .. it will only be possible to justify the adoption of a long-term management option for radioactive waste if there has been public involvement in appraisal of the risks that are involved across the range of possible options".

This public participation can only be meaningful if people receive clear and unambiguous information on radiation risk and protection in which they can have confidence. The organisation with the key role in this area is NRPB.

6.29 The response indicated concern that the HPA proposals could potentially reduce public confidence of this kind. NRPB's national and international reputation for excellence in the field of radiation protection and the respect and trust of the UK public that it enjoys are predicated on:

• the fact that it is seen to be independent, particularly from Government;
• there is a high level of public recognition associated with its name.

The Committee suggested that a successor organisation, particularly if it was no more than a Division of the HPA, would probably not be able to command a comparable level of confidence. This might, in turn, undermine the Government's efforts to identify, and implement, a long-term radioactive waste management option for the UK.

6.30 The response also pointed out that NRPB is a UK organisation, ensuring that its advice is available on a nationwide basis and is applied consistently, and that the supporting research has a national focus. The HPA would inevitably mean fragmentation of these arrangements since the Agency will exist only in England and Wales and the Scottish Executive will need to develop separate proposals, raising the prospect of different advice for England/Wales and Scotland. The HPA proposals also have significant organisational and practical consequences since NRPB services are delivered across the UK regardless of the location of its offices.

6.31 Therefore, RWMAC's view is that NRPB should remain as an integral UK organisation. If the Government does decide to proceed with the proposals, the Committee believes that it should first give a clear indication and assurance of how NRPB's role and reputation as an independent source of expert guidance would be protected within the HPA. It should also ensure that proposals are developed for Scotland with the aim of ensuring adequate cooperation between the two organisations that guarantees the provision of consistent advice throughout the UK.

The Policy and Financial Management Review of SEPA

6.32 Sponsoring Government Departments are required to review Non-Departmental Public Bodies every five years in order to ensure that they are delivering policy objectives effectively, economically and efficiently. In July 2002, Scottish Executive (SE) Ministers published a consultation document seeking comments from a large number of bodies both on SEPA itself and on its performance in protecting the Scottish environment. As part of this SEPA Policy and Financial Management Review (PFMR), RWMAC was invited to provide its views and did so in September 2002.

6.33 The response made clear that RWMAC's perceptions derive solely from the Committee's view of SEPA's regulation of radioactive materials and wastes, although, to an extent, this allows a broader view of the Agency's work. The response gave answers to only some of the questions set out in the PFMR consultation document. Importantly, it covered the regulatory interface between SEPA and HSE in relation to controls over the storage of waste on nuclear sites (see paragraph 2.12 (i)). The other main points of RWMAC's response are summarised below.

6.34 It is clear that SEPA aims to deliver an efficient and integrated system of environmental protection. The RWMAC response strongly supported this aim. It also stressed the need for consistency, as far as reasonably practicable, of regulation of radioactive and ordinary chemical wastes. It pointed out the need for a long-term perspective consistent with SEPA's duties to take account of sustainable development. In relation to radioactive waste management regulation, the response referred to the tensions this might create with HSE's shorter-term focus on nuclear safety. The Memorandum of Understanding signed with HSE (see paragraph 3.7), better understanding achieved through a "common purpose" regulatory approach, and consistent guidance for field inspectors in both SEPA and HSE in order to help manage the regulatory interface, are some of the means, in RWMAC's view, of overcoming potential difficulties.

6.35 The consultation sought views on whether SEPA should have a dual role as environmental regulator and "environmental champion" and how this relates to its functions both as a source of expert advice to SE on policy-making and an important means of implementing policies once they are decided. RWMAC believes that the issues raised by these questions are sensitive and important.

6.36 The relationship maintained between SE and SEPA, essentially that SE formulates policy and SEPA implements it, and that SEPA is equipped to provide expert advice that may be unavailable elsewhere, is, in RWMAC's view, a sound one. What is meant by the role of an "environmental champion", over and above this, needs to be carefully considered and defined if best use is to be made of SEPA's resources.

6.37 The response made clear that RWMAC does not dispute the value of SEPA's advisory role. But it is vital to avoid a situation where the environmental champion role could blur, and possibly conflict with, its primary duty, exercised through regulatory powers, to protect the Scottish environment. In RWMAC's view, the decision on whether an environmental champion is needed should emerge from policy considerations. The appropriate way to take these considerations forward is a process of transparent public consultation, leading to a decision by SE as the elected Government of Scotland.

6.38 It is also important to make the distinction between championing the environment and, as part of policy-making, raising public awareness of environmental risk and protection. The Committee has stressed the need for the views of the public on these issues to be identified and explored ⁹. Underpinning this is the need for better public understanding of the nature of radioactive waste and the health risks it poses. As a regulator, particularly in deciding applications for disposal authorisations under RSA93, SEPA already has an important role in helping to achieve this.

6.39 Lastly, the response addressed the issue of proportionality in regulation. RWMAC believes that regulatory requirements need to be proportionate to the problem; that is, they do not require the regulated body to commit a level of financial or manpower resources unless they are demonstrably commensurate to the benefits to be achieved. This can divert scarce resources, possibly from more important work elsewhere. The response drew on the example of the radioactive particles found on and around the Dounreay nuclear site, where the Committee questioned, on grounds of cost and practicability, SEPA's view that the contaminated offshore sea bed can, realistically, be returned to its original condition ¹⁰.

Other work

Sealed radioactive sources

6.40 Mrs Cathy Griffiths represents RWMAC on a working group, sponsored by EA, convened to explore practical aspects of the management and disposal of sealed radioactive sources. The need for work of this kind was covered in RWMAC's report on Problems of Small Users of Radioactive Materials ¹¹and in Managing Radioactive Waste Safely.

6.41 The draft terms of reference of the EA working group include consideration of:

• implications of the EC draft High Activity Sealed Sources Directive;
• guidance and best practice on the return of spent sources to the manufacturer;
• options for tracking changes in ownership of sources and maintaining their security;
• practical improvements in the disposal of sealed sources and funding models to cover such costs.

ISOLUS

6.42 Mr Fred Barker represented RWMAC on a Steering Group which oversaw a Front End Consultation (FEC) on the future management of laid-up nuclear submarines. The FEC was commissioned by the MoD and undertaken by a team from the University of Lancaster. The role of the Steering Group was to ensure the independence, accountability and inclusivity of the FEC. The purpose of the FEC was to: determine how people would like to be involved in future consultation on management options and sites; what issues they would like to see options evaluated against; who they think should be involved in the Steering Group for subsequent stages of consultation; and the role and remit of the Steering Group for subsequent stages.

6.43 The FEC led to the formulation of 65 recommendations, covering issues of both process and substance. MoD responded to the FEC report in April 2002 ¹². Most of the 65 recommendations were accepted by MoD, a few were reserved for future consideration, and three were rejected.

6.44 Miss Sue Stoessl attended one of the FEC stakeholder workshops on behalf of RWMAC.

Information Needs Research Project

6.45 Dr Martin Courtis represented RWMAC on a steering group, chaired by Defra, to oversee a research project: Identification of the information needed to decide with confidence on the long-term management options for long-lived radioactive waste. This project, designed to run in parallel with, and to inform, the Managing Radioactive Waste Safely initiative, was let in 2001 to Wilkinson Consulting Limited. The project specification, together with the terms of reference of the steering group, a list of its members, and the minutes of its meetings, are available on the Defra website - www.defra.gov.uk.

6.46 Dr Courtis also represented RWMAC on the organising committee for the British Nuclear Energy Society (BNES) seminar, held in April 2002, on liquid and gaseous radioactive discharges to the environment.

References

¹ Twenty First Annual Report of the Radioactive Waste Management Advisory Committee, Department for Environment, Food and Rural Affairs, October 2001.

² International Atomic Energy Agency, Principles for the exemption of radiation sources and practices from regulatory control, Safety Series number 89, 1988.

³ Reducing Risks, Protecting People, HSE Books, December 2001.

⁴ Modernising Planning - Streamlining the Processing of Major Projects Through the Planning System, Department of the Environment, Transport and the Regions, May 1999.

⁵ Planning: Delivering a fundamental change, Department of Transport, Local Government and the Regions, December 2001.

⁶ New Parliamentary Procedures for Processing Major Infrastructure Projects, Department of Transport, Local Government and the Regions, December 2001.

⁷ 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.

⁸ The Radioactive Waste Management Advisory Committee's Response to the Government's Consultation Document: "Managing Radioactive Waste Safely", Department for Environment, Food and Rural Affairs, June 2002.

⁹ The Radioactive Waste Management Advisory Committee's Advice to Ministers on the Process for Formulation of Future Policy for Long Term Management of UK Solid Radioactive Waste, Department for Environment, Food and Rural Affairs, September 2001.

¹⁰ 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.

¹¹ The Radioactive Waste Management Advisory Committee's Advice to Ministers on the Problems of "Small Users" of Radioactive Materials, Department of the Environment, Transport and the Regions, September 2000.

¹² Interim Storage of Laid Up Submarines - Front End Consultation, Ministry of Defence's Response to Lancaster University's Final Report, April 2002.