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Regulating discharges from Sellafield

RADIOACTIVE SUBSTANCES ACT 1993: PUBLIC CONSULTATION ON PROPOSALS FOR THE FUTURE REGULATION OF DISPOSALS OF
RADIOACTIVE WASTE FROM BNFL SELLAFIELD

COMMENTS FROM THE NUCLEAR FREE LOCAL AUTHORITIES

A. Consultation Process

A1. Agency timetable 1996 to 2001

We do not believe that Ministers, when deciding in 1994 that there should be a review after three years,
envisaged that it would not be complete until 2002 and that it would be proposed that the review should
legislate for a period lasting until 14 years after the initial instruction. This seems to be an abdication
of responsibility by the Agency. Reviews at least every four years are mandatory for the IPPC
non-radioactive element of the discharges authorised.

The Agency has wrongly allowed the commercial requirements of the company to be given paramount
importance over the obligations in section 5(1) of the Environment Act 1995.This is illustrated
for example by the importance which the Agency attaches to the fact that the proposed authorisations
will not constrain the operation of the Magnox reprocessing plant or THORP.

A2. BNFL submission of late and further information

It is also highly unsatisfactory that a company with BNFL's resources has not been prepared to provide
timely information to the Agency, notwithstanding the Agency's view that such information is essential
(see para 4.22, 4.25, 5.82, 6.7). Rightly or wrongly this creates the clearest impression that the
company considers that the Agency is weak given that the company's non-cooperation with the Agency,
identified below, has continued despite top-level undertakings. The agency must be seen to be
deserving of more respect. The late provision of information also makes the consultation process
unsatisfactory since consultees are denied the Agency's views on this late information.

It would appear that the recent timetable has been as follows:
Jan 99 Agency request information
Oct 99 BNFL confirm putting little effort into supplying information
Feb 2000 BNFL supply first tranche of information
March 2000 Agency Director of Operations complains to BNFL Chief Executive
April 2000 Chief Exec says in effect Company will mend its ways
June 2000 Further information provided
September 2000 Further information provided
Agency advise that further information must be provided by 20 April 2001
Deadline ignored: company has not mended its ways
End of May 2001 further information provided
Early June 2001 further information provided

On 3rd March 2000 Archie Robertson, Director of Operations of the Agency   wrote to the Chief Executive
of BNFL expressing his "concern about the view the leadership of BNFL takes of its responsibilities for
the environment and its ability to properly comply with its licenses." He instanced a whole series of
shortcomings but particularly for present purposes stated

"The lead inspector for Sellafield, felt compelled to write to Sellafield about the BNFL approach
to its environmental responsibilities on 8 February 2000. In this letter, he expressed concern that
serious shortcomings may be developing in BNFL's management systems as a consequence of resource
limitations, a lack of awareness amongst staff of waste disposal authorisations issued by the Agency
under the Radioactive Substances Act 1993, and the Environmental Protection Act 1990, and a general
lack of recognition of the importance of environmental issues.

On 29 February 2000, the Environment Agency finally received the first tranche of information from
BNFL for the review of the Sellafield authorisations for the discharge of radioactive wastes to the
environment. The Agency will now assess this information to determine whether it meets our
requirements and, if necessary, will be seeking further information from BNFL.

In January 1999, the Agency wrote to BNFL requesting information for the review. The Agency has
since had discussions and exchanged correspondence with BNFL in an attempt to obtain this
information in order to meet a tight time scale of 12 months that has been imposed by the
Government for completing the review. It must be said that BNFL has been less than co-operative
at times in agreeing to provide the information in line with the required time scale. This
culminated in BNFL stating at a liaison meeting with the Agency in October 1999 that it was
putting little effort into preparing the information and that BNFL was not prepared to
allocate significant resources to the task until generic principles and criteria for the
regulation of discharges had been produced by DETR. In the intervening period since this
meeting, BNFL has provided, however, a programme for the submission of the information.
I find it difficult to accept BNFL's attitude towards the request for information as one that
would be expected from an organisation with a positive commitment to environmental management and
due regard to regulatory issues." (my emphasis)

After a meeting on 4th April last year between the Environment Agency's Director of Operations
Archie Robertson and the new Chief Executive of British Nuclear Fuels plc (BNFL) Norman Askew,
Mr Robertson said
"Recent incidents have damaged confidence in BNFL. I have made it clear that the Environment Agency
requires management from the top down to be clearly focused on, and accountable for, protecting the
environment. Environmental protection must be central to all BNFL's operations. I was reassured by
today's meeting that the environment is being placed at the heart of BNFL's organisational and
management reviews. I look forward to seeing a fundamental review of environmental policy
leading to significant improvements in performance. I will be meeting Mr Askew again later in
the year, followed up by a meeting with the full Board of BNFL. By that stage, the Agency will
be some way into its review of authorisations at the Sellafield site and will also have started
public consultation on new authorisations for the Magnox stations. This will be an important
opportunity to review progress. In the meantime, Agency officers will be keeping me informed
about BNFL's regulatory performance and its regard for the environment."

It seems clear that these meetings did not produce the necessary progress. The conclusion
must be that the Agency is not managing to pull its weight.


B. Discharges cannot be authorised from activities which are not lawful

B1. Justification

The Agency states (p iv) that it
 "recognises the importance of justification in the context of its review of the Sellafield
authorisations.   However, given the wide nature of the issues encompassed by the 'justification'
principle (including key aspects of Government policy), the Agency considers that the Government
is better placed to determine  the overall balance of advantages and disadvantages from a
national perspective. The Government has confirmed to the Agency that, in future,
justification decisions will be for the appropriate Secretary of State. In line with the
statements made in the Scope and Methodology document for the review of the authorisations,
the Agency has not, therefore, undertaken a justification exercise at this stage and,
in particular, has not examined alternatives to the reprocessing of spent nuclear fuel."

The Agency makes the same point in slightly different words at para 5.2 saying that "in
particular it has not examined alternatives to the reprocessing of spent fuel and whether
the operation of Calder Hall nuclear power station is justified."

In taking this line, the Agency has misdirected itself, in breach of general principles of
EU law. The position is that before 22nd May 2000 justification was required by the now
superseded Basic Safety Standards Directive. After 22nd May 2000, Article 6 of the new
Basic Safety Standards Directive replaced the previous requirement. For both Directives
the relevant Articles have to date, in breach of EU law, remained untransposed into UK law.
The Agency's position is therefore governed by elementary principles of EU law in these
circumstances: the duty to apply an untransposed Community provision applies to all
administrative authorities of the State, such as the Agency, and not just to Central
Government: see Fratelli Constanzo SpA v Comune di Milano 1989 CMLR 239 and more generally
Article 5 of the EC Treaty. It is not open to the Agency to shuffle off its responsibilities
to another part of the State.

As a result of this misdirection the Agency has not taken the necessary steps to ensure a proper
analysis of the benefits and detriments of the practices it has identified that give rise to
 wastes listed (see para 2.1):
- Reprocessing of Magnox spent fuel
- Reprocessing of Oxide spent fuel (THORP)
- Storage and treatment of liquid wastes
- Solid waste storage/retrieval/treatment
- Decommissioning of redundant plant
- Operation of Calder Hall nuclear power station
- Routine radiochemical analysis and research and development.

As a result the Agency has not therefore placed itself in a position to make the necessary prior
judgement on whether the relevant practices are justified.
Without such a prior determination the Agency cannot arrive at a lawful decision.

We are reinforced in our view that this is correct by the Scottish Environment Protection Agency
 which states that until the proposed Ionising Radiations (Amendment) Regulations 2001 (submitted
to the European Commission for approval in February 2001) are made law SEPA is responsible for
considering justification when determining an application under RSA '93 in Scotland.

We are aware of many factors that amount to new and important evidence about the efficacy of
reprocessing that mean that there is an urgent need to review the justification of  both plants.
We are also satisfied that Calder Hall has never been justified and that this is therefore necessary.
Protestations by the Agency to the effect that Calder Hall's justification was examined in 1994
along with THORP do not bear examination.

B2. Disposal of spent fuel as waste from nuclear sites
Recent statements from British Energy put it beyond issue that much spent fuel is as a matter of
law now incontrovertibly radioactive waste under the Radioactive Substances Act. Disposals of
such spent fuel wastes from BE sites therefore require prior authorisation and prior justification
before any shipment to Sellafield for whatever purpose and any decision to reprocess will
require prior justification before such authorisations can be granted.

B3. EC Waste Framework Directive
Separately, but in any event, disposals of spent fuel from all nuclear sites require prior
consents under the EC Waste Framework Directive which has until now been wrongly
ignored by the Agency.

B4. The Agency's approach in these three respects runs counter in any event to its duty
to ensure that radioactive wastes "are not created unnecessarily." (para 5.10). Certainly
this must mean that it cannot allow radioactive wastes to be created at Sellafield where
prior legal requirements relating to the transfer of material to the site or the
processes on site have not been met.

C. BEPO

C1 Procedural elements
The Agency states that it "...has required BNFL to review current practices used on the
site for disposing of radioactive wastes and to assess whether they represent the best
practicable environmental option (BPEO). The Agency has assessed BNFL's current practices
against other potential disposal options for principal radionuclides and whether they
represent BPEO ..." (para 4.4)

The Agency identifies BPEO as " a concept developed by the Royal Commission on Environmental
Pollution, which provided the following definition:
"... the outcome of a systematic consultative and decision-making procedure which emphasises
the protection of the environment across land, air and water. The BPEO procedure establishes,
for a given set of objectives, the option that provides the most benefit or least damage to
the environment as a whole, at acceptable cost, in the long as well as the short
term." (para 5.7)
The Agency adapts these final words for present purposes to read
"the radioactive waste management option, for a given practice, that provides the most
 benefit or least damage to the environment as a whole in the long term as well as in
the short term, taking into account operational doses and risks, and social and
economic factors."(para 5.8).
This interpretation of the meaning of BPEO does not deny the RCEP's clear reference
to the fact that  BEPO is the outcome of a consultative process.

The RCEP's view was that
- "... the procedure should be open ..." (para 1.7)
- " ... openness and accountability are central to BPEO." And
- "... there should be the widest possible opportunity for others who may be
affected to contribute to the decision." (para 1.13)
- " ... where the trade-offs are difficult or controversial, the selection of BPEO
cannot be left to scientists, industrialists and regulatory experts alone. Public
involvement is needed so that the public values underlying the choice of BPEO are
indentified." (para 3.20)
- " There must be appropriate and timely consultation with people and organisations
directly affected. The circle of those involved in taking the decisions should be
appropriately wide." (para 5.5)

But this has not happened here. Although the company claims to have assessed the BPEOs
in accordance with the criterion of "stakeholder acceptance" (para 5.16), the present
consultation on BPEOs selected come as a postcript rather than a process integral to
the choice.

As for the Agency, it is required to act in accordance with Government Policy on Sustainable
Development contained in A Better Quality of Life (May 1999) including its third guiding
principle set out in chapter 4. This commits the agency to decision-making "(which) takes
account of a wide range of costs and benefits, including those which cannot easily be
 valued in money terms ... (including)  (p)ublic values, the timing of costs and benefits
and risks and uncertainties ..."

In October 1998 RCEP in its  21st Report discussing just these public values recommended
that
"Values should be articulated at the earliest stage possible in setting standards and developing
policies. The public should be involved in the formulation of strategies , rather than merely
 being consulted on already drafted proposals." (see para 7.22 and 9.77 RCEP 21st Report Setting
Environmental Standards, my emphasis)

The Agency has therefore made procedural errors by failing to insist that the company take account
of public values in the process of considering options and then secondly in the Agency's own prior
assessment of the Company options.

C2 Application

The Agency identifies that BEPO could be used to examine options
- for managing spent fuel;
- for basic chemicals used in fuel processing
- for individual radionuclides
- for individual waste streams. (page 16)
The first two are "considered to be outside the scope of the current review". The third
has been "chosen", the fourth has "therefore" (but without demonstrable reason) been also
assessed. No rationale is given.

When the Agency considers BEPO for the IPPC element of reprocessing plants under section 7(7)
 Environment Act 1990, it does so having regard to a much wider approach than the Agency is
taking under the Radioactive Substances Act. That wrongly undermines the primacy of the
European legislation which is not merely an end-of-pipeline pollution-minimisation measure
but a much more thorough-going piece of legislation aimed at positively preventing pollution
by examining e.g different feedstocks and methods of production. THORP now exists to produce
 plutonium and uranium that no-one wants or perhaps to provide the feedstock for
manufacturing nuclear fuel if the MOX plant is allowed to operate. In either event
the narrow approach to BEPO would not be lawful for the IPPC element and is not
rationally defensible for the radioactive aspects of the discharges for THORP or
other activities at Sellafield.

C3 Universal application

There seems to be a disparity between the Agency's wish to see BEPO demonstrated for all
radioactive waste disposals (see para 6.70) and the proposal that BEPO should be carried
out only for all new proposed disposals.

D Limits and discharges

The Agency must end the practice of claiming 20-30% reductions in the radiological impact of
 discharges at the limits proposed on page one of any consultation document such as this
(see page i) whilst burying increases of actual discharges in tables in the body of the
document (see page 33) and by failing to highlight information on future likely discharges.

E. Contaminated earth

This is poorly explained: the division of labour between the Agency and the HSE remains
obscure.

F. Research and time limits

A number of proposed requirements seem insufficiently clear as to deadlines and requirements:
e.g reviewing developments or providing annual reports (see para 6.84 and 6.85) does not appear
to commit BNFL itself to any research; reviewing means for assessing radioactivity (see para
6.86 indent 2) does not appear to be deadlined. With the evidence of the company's  lack of
 commitment to the current review in mind, it is clear that requirements will need to be
very precisely framed.