Current Arrangements and Requirements for the Conditioning, Packaging and Storage of Intermediate Level Radioactive Waste: Joint RWMAC/NuSAC Report

5. THE ROLES OF THE REGULATORS

5.1 This chapter outlines the roles of the regulators, reviews the nature of their guidance for the management of ILW, and comments on tensions at the regulatory interface.

Statutory roles

5.2 The responsibility for the regulation of radioactive waste management on nuclear licensed sites rests with NII and the environment agencies (EA in England and Wales and SEPA in Scotland). NII is part of the HSE whose power to grant nuclear site licences derives from the Nuclear Installations Act 1965 (as amended). The role of the environment agencies derives primarily from the Radioactive Substances Act 1993. NII is concerned with nuclear safety and it regulates the conditioning, packaging and storage of ILW. The environment agencies regulate the disposal of radioactive waste on or from nuclear sites including the discharge of liquid and gaseous effluents and the removal of radioactive waste for treatment, storage or disposal elsewhere. The agencies' responsibilities for waste disposal mean that they have a legitimate interest in on-site waste management operations, including conditioning, packaging and storage.

5.3 There is a statutory requirement on NII, as part of the HSE, to consult the environment agencies on radioactive waste management issues before issuing, amending or varying nuclear site licenses, or attaching relevant conditions to them. In addition, Memoranda of Understanding (MoU) have been established between NII and the environment agencies to allow their respective interests to be adequately represented in regulatory decision-making processes, and to seek to eliminate the possibility of conflicting requirements being placed on licensees.

NII views on the impact of the collapse of the ILW disposal programme

5.4 NII informed RWMAC/NuSAC that its fundamental approach to regulating the management of ILW had not changed since the March 1997 RCF planning decision. It added that:

"NII has over the years been increasingly concerned about the storage conditions of ILWs on some licensed nuclear sites, and has wished to see potentially mobile wastes placed in a passive safe state for storage. The RCF planning decision, which has effectively delayed the possible availability of an ILW disposal facility by a significant period, has reinforced NII concerns.

In response to the decision, in 1998 NII carried out a review to establish a clear understanding of the effect of such a delay on the safety of stored ILW. The review concluded that, while the delay did not cause any immediate safety problems, a significant number of new and replacement stores would be required in the future. The review also highlighted the number of areas where radioactive waste was being stored in a raw form in facilities that did not meet modern standards."

The nature of concerns about the storage of untreated wastes in facilities that do not meet modern standards is discussed in chapter 7.

NII Guidance for Inspectors on the management of radioactive waste

5.5 NII's view of the need for longer-term interim storage and the desirability of putting ILW into a passively safe state, is reflected in recent guidance for its inspectors ¹⁰. This guidance, which is posted on the NII website, seeks to provide a clear picture of NII's expectations of licensees in their management of radioactive waste.

5.6 The statements of regulatory strategy set out in the guidance which are of most relevance to this study are as follows:

"NII requires licensees to undertake strategic planning for the management of all radioactive .. waste.

NII expects that licensees manage radioactive .. waste in a manner that is compatible with future potential disposal requirements and, unless justified on safety grounds, does not unnecessarily foreclose any foreseeable management options.

NII requires that, so far as is reasonably practicable, radioactive .. waste should be characterised and segregated in order to facilitate safe and effective management and disposal.

NII requires that, so far as is reasonably practicable, radioactive .. waste should be stored in a passively safe state.

For radioactive wastes for which there is presently no disposal route or some other long-term option, licensees should plan for a significant period of interim storage.

NII expects that any future storage facilities or modifications to existing facilities should be designed to facilitate inspection, retrieval and remediation of the waste and the facilities.

NII requires licensees to make arrangements for recording and preserving all the information that may be required in the future to ensure the safe management of radioactive .. waste.

5.7 Some of the guidance accompanying these statements is particularly pertinent to the concerns of this study. In particular, NII goes on to emphasise a need for early waste conditioning: "NII requires that wastes should be placed into a passively safe state as soon as it is reasonably practicable". This emphasis does not accord with the policy position set out in the 1995 White Paper Cm 2919 ², but is reflected in a statement in the current consultation paper, MRWS (see paragraph 4.12 above). This is an important example of where a regulatory requirement may be said to be running ahead of, and potentially determining, policy. As such, it is important to ask whether it is appropriate to elevate the emphasis on early conditioning to the status of Government policy. We draw conclusions about this in chapter 8. The guidance also includes a set of engineering principles which seek to describe the features of passive safe storage and advice on interim storage timescales. These aspects of NII guidance are also discussed in chapter 8.

EA/SEPA views on the impact of the collapse of the ILW disposal programme

5.8 EA also informed RWMAC/NuSAC that the RCF decision in 1997 did not affect its basic regulatory objectives. However, it observed that the decision effectively reduced the role and responsibility of Nirex, and stated that:

"..... there is now an additional need for regulatory assurance on the future disposability of wastes, which recognises that the waste will need to be stored for an extended period."

EA defines disposability ¹¹ as "the likelihood that a package of conditioned ILW produced in current circumstances (that is before a site and a repository design is available) will be, as far as is reasonably practicable, acceptable for disposal in a future repository." The case for additional regulatory assurance on disposability, and potential ways of achieving it, are discussed in the next chapter.

5.9 SEPA acknowledged that the RCF planning decision had provided increased incentive to condition ILW to allow safe on-site storage, but was also concerned that such conditioning should not be allowed to prejudice its suitability for ultimate disposal.

EA Guidance on the conditioning of ILW

5.10 EA has recently produced guidance for use by its site inspectors when responding to consultation by NII on proposals by waste producers for treating ILW ¹¹. This guidance is posted on the EA website. It points out that all long-term management options place stringent requirements on the conditioning of wastes, but that deep disposal would entail certain "unique requirements". For this reason, the guidance places emphasis on the measures that EA inspectors should seek to take to ensure that conditioned waste forms will be suitable for engineered deep disposal, while recognising the need to ensure safety and environmental protection during storage. These measures are in essence based on various levels of review of the implementation of the Nirex Letter of Comfort system, which is described in the next chapter.

5.11 The guidance states that the Agency does not intend to replicate the extensive assessments undertaken by Nirex, but that inspectors should concentrate on key aspects. These include:

• are the wastes unusual when compared with other wastes that have previously been considered disposable?
• what, if any, issues have Nirex raised in its advice and how are these being addressed?
• is the waste packaging proposal consistent with the site waste management strategy and with the conclusions of a Best Practicable Environmental Option (BPEO) study?
• is the waste well-characterised and, if not, how is the characterisation to be carried out?
• how is fissile material being managed to avoid criticality?
• how are those radionuclides that are particularly significant to the post-closure safety of a disposal facility being managed?
• are there any materials present that could affect the post-closure safety of a disposal facility?
• could there be significant degradation during storage of the waste package?

5.12 The guidance also addresses the "reworkability" of conditioned waste forms, which is defined as the "measure of the feasibility of repackaging conditioned waste". The guidance points out that it is desirable to avoid the need for reworking and that if a waste package is judged to be disposable, then the risk of the need for reworking should be low. Nonetheless, it states that inspectors should assure themselves that the practicality of reworking waste packages has been addressed to an appropriate level of detail.

5.13 SEPA informed RWMAC/NuSAC that it had not produced any guidance on ILW management.

Waste producer views on regulator guidance

5.14 Waste producer views on regulator guidance were as follows:

"Guidance is provided, but the issue is how to balance the conflicting requirements ... The guidelines are in conflict in certain areas e.g., the emphasis to be placed on Nirex Letters of Comfort." (BNFL)

"The regulators have produced a considerable amount of guidance material ... Much of this is very helpful: but the problem .. is that in some areas the regulators may be considered to be setting national policy rather than interpreting it." (BE)

"A current and foreseeably growing difficulty is the disparity between NII requirement to condition and package wastes as soon as possible and the environment agencies requirement to not foreclose future options." (UKAEA)

5.15 RWMAC/NuSAC observe that these comments raise matters of concern which need to be addressed at the policy level. The views of the Committees on the balancing of conflicting requirements and the requirements of policy are developed in the chapters that follow.

Tensions at the regulatory interface

5.16 Waste producer views on the tensions that can arise between the regulators varied significantly:

"The nuclear industry is unique in being regulated in detail by both NII and the Environment Agency in respect of its principal activities. The two organisations operate to fundamentally different regulatory systems and apply conflicting requirements on BNFL at the level of both principle and detail ... For most areas of activity, the regulatory arrangements can be made to work, although do take up a lot of resource. However, when so many different factors have to be considered and the two regulators have different aspects upon which to focus then conflicts will arise which are difficult to resolve. The outcome is not only delay and extra cost, but diversion of peoples' effort away from the areas that BNFL would choose." (BNFL)

"From BE's experience the dual regulatory mechanisms of the HSE and the Environment Agencies are currently working reasonably well. There has been conflict in the past .. (but) .. increasing pragmatism on both sides appears to have lessened the disagreement." (BE)

"The current dual regulatory mechanism can cause certain conflicts when trying to meet the aims of the two regulators. Their objectives with regard to key areas of waste management seem to be diametrically opposed. NII wants passive safety and the early immobilisation of wastes and EA/SEPA do not want waste producers to foreclose options." (UKAEA)

"The Environment Agency's priority is to minimise dispersion of pollutants, including radioactive materials, into the environment, while NII has worker safety as a prime driver. These differing objectives are sometimes difficult to reconcile. For the most part, the NII/EA Memorandum of Understanding leads to sensible resolution of any conflict, but the differing regulatory objectives can result in temporary uncertainty for the operator". (AWE/MoD)

5.17 The NII and environment agencies' position is essentially that their respective roles and responsibilities are sufficiently well defined by statute and supplementary statements. The latter include the MoUs that have been produced and agreed, to set out in a formal way respective areas of responsibility (see paragraph 5.3). They also refer to regular contacts at senior management and site inspector levels. In respect of ILW management, the regulators also stated that there had been consultation between their organisations to seek consistency in the two sets of guidance outlined above ^10,11.

5.18 However, there have been regulatory tensions between NII and the environment agencies that can impact on plans for the conditioning, packaging and storage of ILW. There is also obvious concern on the part of the regulators to the criticism that regulatory interaction has not always worked well. In response, a number of initiatives have been undertaken, aimed at ensuring that regulatory interaction is improved in future. This programme includes production of a top level Joint Statement of Intent (signed by the Director of the HSE and the Chief Executive of EA), revision of the MoU between NII and EA, a November 2001 seminar with the nuclear industry, and other initiatives to improve regulatory procedures.

5.19 RWMAC/NuSAC welcomes the strenuous efforts that the regulators are currently making to ensure more effective working arrangements in the future. However, the extent to which these initiatives deliver improvements should be carefully monitored and assessed by the regulators in conjunction with other key stakeholders to ensure that the necessary improvements are achieved.