RWMAC report on MoD radioactive waste practices

4. OVERVIEW OF MoD ARRANGEMENTS FOR DEFENCE WASTES MANAGEMENT

MoD organisational structures

4.1 The organisational structures responsible for the oversight of the MoD's radioactive materials and radioactive waste management activities are complex. In recent years, they have been subject to various review processes, the outcome of which has frequently required rapid and extensive change. A description of current MoD arrangements is given in Annex 2.

4.2 The structures and arrangements described in Annex 2 provide the framework through which MoD Ministers are advised on the formulation, promulgation and implication of policy for radioactive wastes. The operations which produce defence wastes cross a wide range of command chains and the boundaries of different MoD organisations.

MoD's radioactive waste management strategy

4.3 Against this complex background, it is notable that there is, as yet, no explicit statement of MoD's strategy for defence wastes, nor any account of its responsibilities either for assembling or implementing such a strategy. RWMAC advised in its previous study of defence radioactive waste management practices¹ that such a strategy statement should be produced. In the early part of 2000, RWMAC was shown a draft strategy document, on which it provided initial views to MoD. These views are set out in Annex A2.2, paragraph 9. RWMAC hopes that MoD will, as soon as is practically possible, finalise and publish its strategy for managing defence wastes. It may be that the findings of this study will inform development of MoD's strategy.

4.4 Preparation of the strategy remains important for several reasons. Firstly, to provide both those who work for the Ministry, or are contracted by it to carry out defence work, with a clear understanding of its overall aims and ambitions for radioactive materials and wastes. Secondly, to enable MoD to form an overall view of, and to manage effectively, its major holdings of radioactive wastes. Thirdly, to help make MoD's policies and practices more transparent to the outside world which naturally harbours concerns about the military use of radioactive materials and the management of resulting wastes. With these points in mind, RWMAC also notes MoD's intention, to prepare detailed guidance, to accompany the strategy, on its policies and practices for defence wastes.

4.5 RWMAC accepts that production of such statements will not be easy. The absence of a Government policy for radioactive waste management continues to make life difficult for all organisations required to manage radioactive wastes, including MoD. The rapid changes that have taken place within MoD in the past few years, coupled with the decentralising processes of contractorisation and privatisation of defence work, also complicate the production of such a strategy statement.

4.6 Nevertheless, these difficulties should not, in themselves, prevent MoD from setting out, in strategic terms, the way in which it currently aims to deal with its radioactive waste liabilities. Many elements of the strategy already exist, but need to be pulled together, in a coherent way, so that they can be publicised and enacted across MoD as a whole, and made available to its contractors.

4.7 For these reasons, RWMAC continues to believe that MoD should produce and publicise a clear statement of its strategy for the management of the radioactive wastes in its ownership.

4.8 Coupled with production of statements of its radioactive waste management strategy, policies and practices, MoD will need to ensure that it has appropriate structures and mechanisms in place for ensuring their delivery at the working level. This is unlikely to be a straightforward task given the variety of organisations, represented by MoD and its associated private sector companies, involved in managing defence wastes. Arrangements will be necessary to ensure "ownership" of both the process by which the statements are produced and regularly reviewed, and their various constituent elements. Once the strategy, policy and practices statements have been produced, MoD will need to review its management structures, described in Annex 2, to ensure that they are suitable for delivering implementation. Subject only to reasonable considerations of national security and commercial confidentiality, RWMAC believes that these statements should be accessible by the public.

MoD assurance and regulatory requirements

4.9 Ultimately, it is the Secretary of State for Defence who has responsibility for the safe management of defence radioactive materials and wastes. It is also he (or she) who will finally approve the radioactive waste management strategy and, by implication, the policy and practice statements associated with it. MoD must also, therefore, provide a clear mechanism for assuring itself that these strategy, policy and practice statements for defence wastes, as well as wider Government policies and regulatory requirements that also apply, are being delivered and, thereby, that the Secretary of State's responsibilities, as owner of the wastes, are being appropriately discharged. This "assurance" role within MoD needs to be seen to be suitably separated from operational lines of command.

4.10 Looking across MoD's radioactive materials and waste management practices generally, it is clear that a variety of assurance-related functions already exist. But RWMAC believes that the creation of a centralised body to carry out this assurance work, the remit of which would be clearly linked to delivery of MoD's declared strategy, policies and practices, could facilitate the application of a more systematised and effective form of control with clear conceptual and presentational benefits.

4.11 The Committee believes, therefore, that thought should be given to establishing a central MoD body, perhaps located within its existing Health and Safety structure, charged with delivering "assurance" for the Ministry on maintenance of good radioactive materials and waste management standards and on the responsibilities of ownership, as well as promulgating policies and practices to the working level. If this proposal is implemented, MoD may wish to consider whether the new organisation should be given ownership of relevant manuals (including Joint Service Publications), and undertake analogous functions relating to the management of radioactive materials and wastes.

4.12 In RWMAC's view, the Naval Nuclear Regulatory Panel (NNRP), discussed in section 6 of the main report, begins to provide (in practice, of course, only in relation to the NNPP) a suitable model for this assurance role.

4.13 An issue closely related to delivery of assurance is that of regulation, since both are aimed at the delivery of good practice and safety in defence wastes management. The declared policy of the Secretary of State for defence is that where the civil provisions do not apply (see paragraph 4.23), MoD standards should, as far as is practicable, be "at least as good". Thus, there is potentially a further, highly important, role for a MoD assurance body in undertaking regulation of MoD's management of its defence materials and wastes where civil legislation does not yet, or cannot, apply.

4.14 As well as providing a suitable model for its activities, it seems logical for NNRP's responsibilities for the nuclear propulsion programme to be associated with the new assurance and regulatory body. However, RWMAC also believes that there are grounds for considering the inclusion, within the remit of the new body, of oversight of the two other main areas of defence wastes activities, namely the nuclear weapons programme, and the general use by the armed services of small radioactive sources.

4.15 Oversight of the nuclear weapons programme is considered in section 7. In relation to small radioactive sources used for defence purposes, doubts have been expressed by MoD both on the efficacy of the current "pseudo-RSA93" arrangements (a form of regulation agreed between the environment agencies and MoD which are intended to have identical practical effect as RSA93, but without the corresponding force of law). For the reasons outlined subsequently, RWMAC believes there is a case for considering whether MoD's use of radioactive sources should be regulated by the new body.

4.16 In making this recommendation for a central MoD assurance and regulatory body, RWMAC is reflecting the fact that there have been indications that the complexity of current arrangements for defence wastes, coupled with changes to already complicated management structures, may have weakened the Ministry's ability to keep track of radioactive waste issues, and to anticipate difficulties, at all levels in the organisation. Examples include the problems with tritium and carbon-14 in submarine wastes (see section 6, paragraphs 43-51 and paragraphs 52-62 respectively), and with transport of submarine nuclear fuel (also section 6, paragraphs 63-72).

4.17 The new body could also be given responsibility for related functions such as the assembly of MoD's and its private sector companies' contributions to the UK Radioactive Waste Inventory (see paragraphs 4.35-4.36).

4.18 Lastly, as part of its general assurance strategy, MoD may wish to consider whether, de-facto, it is currently accessing sufficient independent advice on issues of radioactive waste management. While the terms of reference of the Defence Nuclear Safety Committee include radioactive waste, the Committee's main focus is on issues of nuclear safety.

The boundaries of civil regulation

4.19 A key issue that any MoD strategy will need to address is the extent to which civil legislation should apply to defence activities. Many defence activities have been contractorised or privatised, and operations have, thereby, been increasingly brought under the civil legislation and its associated regulatory requirements. There are, however, important aspects of defence work that are not covered by civil provisions.

4.20 For example, neither the Nuclear Installations Act 1965 (NIA65) nor the Radioactive Substances Act 1993 (RSA93) apply to operations carried out directly by MoD or the armed forces. NIA65 also specifically excludes reactors "contained within a method of transport", such as nuclear powered submarines. The various Health and Safety at Work Acts, and hence the current (1999) Ionising Radiation Regulations (IRRs), do apply to all MoD activities.

4.21 Where the statutory provisions do not apply to the management of defence wastes or to MoD nuclear operations, civil regulation can only be applied through contractorisation or privatisation (since the activity is thereby removed from MoD's direct control), by specific statutory amendment (to bring a particular site, or activity, within the ambit of civil legislation), or by removal of the specific NIA65 exemption applying to reactors in a means of transport.

4.22 Both conceptually, and in light of experience with contractorised and privatised MoD sites (discussed in various other sections of this report), RWMAC believes that, as an overriding general principle, the benefits of civil legislation, and with it civil regulation, in helping to maintain operational standards, and in promoting transparency, are not in doubt. Its application to MoD operations should, therefore, be taken as far as is reasonably practicable. In other words, there should be a presumption that the civil provisions will apply to MoD radioactive materials and radioactive waste management activities unless the case for not doing so can be clearly set down and justified. That said, the Committee recognises that there will be some areas of defence work where this will, realistically, remain inappropriate. This is addressed in paragraph 4.25 below.

4.23 The Secretary of State for Defence's declared position on the application of civil legislation, and corresponding civil regulation, is that:

"Where the Ministry has been granted specific exemptions, disapplications or derogations from legislation, international treaties or protocols, Departmental standards and arrangements are to be introduced which will be, so far as is reasonably practicable, at least as good as the legislation".

As a general concept, RWMAC is strongly supportive of this commitment and would see it forming a central plank of any formal MoD strategy statement.

4.24 Currently, there are two main examples of these alternative regulatory arrangements. The first is the "pseudo RSA93" procedures exercised by the environment agencies (principally, the Environment Agency (EA) in England and Wales and the Scottish Environment Protection Agency; SEPA). The second is regulation of some aspects of the NNPP, where operations are still undertaken directly by MoD (as opposed to contractors). In practice, NNRP performs the role of the "external" MoD regulator (see the footnote ¹ below) in areas where the civil legislation does not apply to the NNPP (or, in respect of submarine reactors, where there is a specific exemption) as well as undertaking a MoD assurance role in areas where it does. As this section of the report makes clear, RWMAC believes that NNRP's regulatory role should be included in the responsibilities of the central MoD regulation and assurance body.

4.25 The question remains as to where the boundaries of civil legislation should be fixed, i.e., where the specific exemptions, disapplications or derogations should continue to apply. Having given this matter considerable thought in the course of this study, RWMAC believes that it is not practical to extend civil regulation to two areas :

- the operation and on board repair (whether at sea or alongside) of submarine reactors which are exempt from NIA65 as "reactors in a means of transport". The reasons for this view, and also the Committee's thoughts on the extent of NNRP's role in relation to these activities are set out in section 6, paragraphs 14-28;

- the use by MoD active service units of small radioactive sources currently subject to the pseudo-RSA93 procedures. It is, in RWMAC's opinion, inevitably very difficult for the environment agencies to keep track of large numbers of sources transferred on a frequent basis (as a consequence of military requirements) between MoD sites. On the face of it, this function might be better undertaken by the new MoD body.

4.26 Wherever the boundaries of civil legislation are finally fixed, arrangements will be needed to govern the interface between MoD's responsibilities, and those of the civil regulators (a current example being management of NNRP's regulatory relationship with NII at Devonport and Rosyth). This is addressed below. But since the regulatory responsibilities will inevitably overlap, the question arises as to whether civil regulatory oversight alone might not be capable of providing MoD with the assurance it requires. RWMAC believes that it cannot. The civil regulators have a different remit and are, for obvious reasons, less well-versed in defence issues. The Committee's view is that direct MoD regulatory involvement will always be needed to maintain the assurance role; that said, scrutiny by the civil regulators will undoubtedly help to support it.

Interface between MoD and civil regulation

4.27 Both operation of the pseudo-RSA93 arrangements and implementation of the NNRP function involve an interface with the civilian regulators, namely the environment agencies and HSE/NII. Whilst accepting that such functions are needed to provide delivery of the Secretary of State's "at least as good" commitment, RWMAC believes that all areas of "crossover" between civil and corresponding MoD non-statutory control regimes should be covered by bi-partite written protocols, operation of which is regularly and formally reviewed. This is to ensure that commitments and responsibilities, as well as the required forms of interaction, are clearly understood by both sides. There is evidence of progress in this area, which needs to be pursued to completion.

Review of arrangements

4.28 More generally, it was not clear to RWMAC that MoD has carried out any overall review of the Secretary of State for Defence's declared principle that, where there are specific disapplications or exemptions from civil regulatory arrangements, internal Ministry arrangements that are, so far as is reasonably practicable, "at least as good" be set in place. RWMAC recommends that MoD should formally review whether the commitment is being effectively delivered in practice. The review should take in all areas of radioactive materials and waste management where, for whatever reason, the civil arrangements do not apply. This might be a very relevant first task for the new centralised MoD assurance and regulatory body proposed in this report.

Other general operational observations

Openness and public communication

4.29 RWMAC warmly welcomes the ongoing moves that MoD is making towards openness and public communication in respect of radioactive waste management issues. The civil regulatory regimes, particularly RSA93, require information to be made available for public consultation. But there are also indications that commitment to openness extends beyond that required by the civil regulation. More open approaches to dealing with the public at AWE, clean-up of contaminated sites such as Ditton Park in Slough², decommissioning of the Jason reactor at Greenwich, and implementation of the ISOLUS decommissioned submarine programme (for the latter, see section 6, paragraphs 73-87) are all indicative of a more open approach.

4.30 There is a need to address public opinion in most of the MoD's radioactive waste management areas. It is better that this is done on the basis of a clear explanation of the issues and the reasons for a particular approach, rather than giving an impression of secrecy and attempts to impose solutions. Clearly there will be particular issues where national security needs to be taken into account but, in RWMAC's view, these should be the exception rather than the rule.

4.31 It was clear from talking to local stakeholders during the course of site visits that not everyone was persuaded that enough was being done. Opportunities for continued improvement do, therefore, need to be considered. The general presumption should be that all views are listened to even if, in the final analysis, not all can realistically be accommodated.

4.32 It is RWMAC's view that, subject only to real security considerations, MoD should take forward the principles of openness and transparency as far as is reasonably practicable to help promote public confidence in the safety of its nuclear and radioactive waste management operations.

Interaction with Nirex

4.33 It is clear that the absence of a Government policy for the long-term management of solid radioactive wastes continues to make life difficult for MoD, as indeed it does for other nuclear operators, in a number of ways. The last RWMAC review of defence wastes noted "the lack of any effective liaison between MoD and Nirex". The effect of this was that MoD had little practical influence on Nirex policy and that, in some key areas, forward planning for managing defence wastes was being jeopardised. Since the last study, this lack of liaison has, in RWMAC's view, been rectified. During the same period, the Nirex repository programme for intermediate level radioactive waste (ILW) collapsed (see footnote ² below). Nevertheless, close liaison between MoD and Nirex remains necessary because the latter, through its "letters of comfort" system, effectively dictates UK standards for radioactive waste packaging.

4.34 Given this change in Nirex circumstances, and the current absence of a national policy for the long-term management of some solid wastes, MoD now needs to ensure its familiarity with, and to take account of, developing thinking by NII and the environment agencies on the conditioning, packaging and storage of waste, particularly ILW, across all defence sites - given the different practices that appear to RWMAC to exist. This review might be undertaken as part of arrangements to improve understanding within MoD of the likely future inventory of defence wastes, not only from current operations, but also from future decommissioning and site clearance.

Accounting for defence wastes in the UK Radioactive Waste Inventory

4.35 In its previous study of MoD's arrangements for dealing with radioactively contaminated land², RWMAC stressed the need for MoD to be in a position to input accurate information to the UK Radioactive Waste Inventory⁴. This needs to cover site operational wastes, wastes that might arise under the ISOLUS programme (see section 6, 74-88), disposal of other redundant items incorporating radioactive materials, and wastes from the decommissioning and clean-up of defence sites, in both MoD and private ownership. Thus, particular attention needs to be paid to ensuring that adequate returns from contractorised and privatised sites (see section 5) are included. The Committee wishes to reiterate the importance of a comprehensive approach in this area, given the complexity of MoD's operations and the apparent absence of any system to maintain a record of defence waste holdings. RWMAC recommends that MoD should allocate clear and specific responsibility for maintaining the inventory of defence wastes and for ensuring the completeness and accuracy of its contribution to the UK Radioactive Waste Inventory on an ongoing basis⁴. This should form part of MoD's general assurance arrangements.

4.36 Even where defence operations have been contractorised or privatised, ownership of defence wastes is retained by MoD. However, one area where there seemed to RWMAC to be uncertainty was in respect of some of the future decommissioning and clean-up wastes from privatised sites, as at Devonport and Rosyth, i.e., those relating to decommissioning of post-privatisation projects. There is a need to be absolutely clear of the ownership of all wastes, both historic and future arisings, and on the basis of this to clearly allocate responsibilities for provision of data to the UK Radioactive Waste Inventory. The waste returns must be estimated as accurately as possible in order to make allowance for all decommissioning and clean-up activities.

Provision of disposal facilities

4.37 It is clear that MoD will have substantial amounts of radioactive waste to deal with in future years. As part of the Government's promised review of radioactive waste management policy, MoD may wish to consider whether there is a case for the operation of its own disposal facility for low level defence wastes given, not least, the pressures that civilian facilities (such as Drigg) are likely to come under in future years, as well as its own defence estate holdings. Clearly, any proposals for such facilities would need to be formulated in an open and consultative way, almost certainly as part of the Government's review, and in line with the principles that RWMAC has previously advocated³.

Land Quality Assessment (LQA) programme

4.38 In respect of the arrangements for dealing with its radioactive waste liabilities, and not least to aid preparation of accurate UK Radioactive Waste Inventory returns, MoD should ensure that all relevant defence sites are brought openly and transparently within its Land Quality Assessment (LQA) programme. RWMAC commented on this need previously in its advice to MoD on its arrangements for dealing with radioactively contaminated land.

1. Although part of the MoD, NNRP is independent of the Navy's operational line (see section 6, paragraph 15); hence it is not unrealistic to describe the Panel, for certain of its functions, as an "external" regulator, although "MoD's own regulator" is possibly a more strictly accurate term. See also the Glossary entry for "NNRP".

2 In March 1997, the Secretary of State for the Environment, then John Gummer, dismissed an appeal by UK Nirex Limited, the nuclear industry and Government-owned company charged with finding a solution for the future management of the UK's ILW, against refusal of planning permission for an underground "rock characterisation facility" (RCF) at Sellafield. This, in effect, caused the collapse of the national programme to develop an underground disposal facility for the long-term management of solid ILW and some low level radioactive waste (LLW).