ARPANSA - Australian Radiation Protection and Nuclear Safety Agency
Nuclear regulator ‘too close’ to ANSTO
A review of Australia’s nuclear industry regulator, ARPANSA, has found an improper relationship with the main agency it monitors.
The Health Department’s audit and fraud control branch has been investigating how ARPANSA handled allegations of safety breaches and bullying at the nation’s only nuclear reactor in Sydney. Whistleblowers had alleged ARPANSA was too close to the Australian Nuclear Science and Technology Organisation (ANSTO), which runs the Lucas Heights research facility.
The whistleblowers claimed that safety reports were being compromised.
The Health Department review also questioned ARPANSA’s impartiality.
Greens Senator Scott Ludlam told ABC1′s Lateline the review vindicates the whistleblowers.”The whistleblowers were right and the people who have been raising concerns about practices with these hazardous materials were right to raise their concerns,” he said. “It also tells us the regulator and the regulated were too close.”
The Federal Government is now reviewing ARPANSA’s regulatory powers, with Thursday’s report recommending they be strengthened if necessary.
Nuclear regulator investigated over safety review
Australia’s nuclear industry regulator, ARPANSA, is under review over its handling of safety breaches at the nation’s only nuclear reactor.
Last year, ABC 1′s Lateline revealed allegations of serious safety and operational breaches at the Lucas Height’s reactor in Sydney, which were later backed up by Australia’s workplace regulator, COMCARE. A departmental investigation was launched by Science Minister Kim Carr last month, but now a party to that investigation – ARPANSA – is itself under review.
The Chief Auditor is investigating how ARPANSA handled the original allegations of safety breaches and bullying at the nuclear site.
ARPANSA last year released two conflicting reports on the claims at the Lucas Heights facility.
Read the full story here.
Australian National Audit Office report
Click here to download this critical 2005 Australian National Audit Office report.
Australian National Audit Office, March 2, 2005, “Regulation of Commonwealth Radiation and Nuclear Activities: Australian Radiation Protection and Nuclear Safety Agency”, Audit Report No.30 2004–05.
Some quotes from the ANAO report:
The Regulatory Branch’s operational objectives and activities are numerous, vary considerably in scope, are not prioritised, and are insufficiently specific to be clear or assessable.
ARPANSA has a risk management framework. Its risk profile focuses on risks to ARPANSA as an entity. It does not identify risks to key regulatory processes, such as unlicensed activity, or non-compliance by licence holders.
ARPANSA’s Chief Executive Instructions (CEIs) address management of the potential for conflict of interest between the regulatory function and other functions. However, overall management of conflict of interest is not sufficient to meet the requirements of the ARPANS Act and Regulations. ... Potential areas of conflict of interest are not explicitly addressed or transparently managed.
ARPANSA has a documented process for recording and actioning complaints. However, the Regulatory Branch does not maintain a complaints register, as required.
The bulk of license assessments—some 75 per cent— were made without the support of robust, documented procedures. Assessments of applications were supported by draft procedures only, which staff were not required to follow.
ARPANSA advised that the effort spent on compliance monitoring is roughly proportional to the level of hazard. However, it does not have an overarching framework to articulate the role, or emphasis, for the various approaches to managing compliance. Nor does it have a strategy for identifying prohibited activity by nonlicensed entities.
ARPANSA does not monitor or assess the extent to which licensees meet reporting requirements. The ANAO found that there had been under-reporting by licence holders. For example, incidents or changes to inventories had sometimes not been reported within the time required, or not reported at all. As well, ARPANSA had not regularly received all annual reports required of licence holders.
ARPANSA has reported only one designated breach to Parliament. This is notwithstanding that there have been a number of instances where ARPANSA has detected non-compliance by licensees. For example, ARPANSA issued a direction to a licence holder to cease use of radiation equipment following a serious injury. The direction was later revoked. The incident was not classified as a breach, notwithstanding that it was acknowledged that safety management had been inadequate.
Overall audit conclusion
The ANAO concluded that improvements are required in the management of ARPANSA’s regulatory function. While initial under-resourcing impacted adversely on regulatory performance, ARPANSA’s systems and procedures are still not sufficiently mature to adequately support the cost-effective delivery of regulatory responsibilities.
In particular, deficiencies in planning, risk management and performance management limit ARPANSA’s ability to align its regulatory operations with risks, and to assess its regulatory effectiveness.
As well, procedures for licensing and monitoring of compliance have not been sufficient, particularly as a licence continues in force until it is cancelled or surrendered. Current arrangements do not adequately support the setting of fees in a user-pays environment, nor ARPANSA’s responsibilities for transparently managing the potential for conflict of interest.
Nuke agency hit
04 March 2005
AUSTRALIA'S nuclear facilities are poorly regulated and could pose a serious risk to public safety, an audit has found.
The Australian Radiation Protection and Nuclear Safety Agency is supposed to protect the public from radiation produced by Government facilities -- ranging from the Lucas Heights nuclear reactors to X-ray machines.
But the Commonwealth Auditor-General yesterday found the agency was in disarray, failing to keep track of safety breaches and handing out nuclear licences almost at will.
The blistering report surfaced as ARPANSA this week announced a team of international nuclear safety experts had begun reviewing Australia's application for a licence to operate its new reactor at Lucas Heights.
The report found that on one occasion two workers at an unnamed Government facility were injured after being exposed to radiation.
An almost identical accident occurred at the same place six months earlier, prompting the agency to warn the facility.
Even then, the warning was withdrawn without explanation two days later and no official breach recorded.
Despite several nuclear threats to public safety, the Auditor-General found the agency had reported a problem to Parliament on only one occasion, breaching its own code of conduct.
"This is notwithstanding that there have been a number of instances where ARPANSA has detected non-compliance by licensees," the report finds.
Agency inspectors often failed to report whether the facilities were in working order. "Some reports did not clearly state whether a licensee was, overall, in compliance with conditions of the licence," the report says.
While safety measures on the front line were found to be well below standard, the report also found the agency was unable to keep track of nuclear licences.
Government departments are supposed to undergo a gruelling process before being allowed to work with radioactive material. But the report says: "The bulk of licence assessments -- some 75 per cent -- were made without the support of robust, documented procedures."
The report also says "deficiencies in planning, risk management and performance management limit ARPANSA's ability to align its regulatory operations with risks, and to assess its regulatory effectiveness".
While departments were supposed to pay hefty licence fees, the report found fees were not charged in 60 per cent of cases.
The Auditor-General made 19 recommendations for improvements, which the agency promised to introduce.
ARPANSA: our independent nuclear regulator ... or ANSTO's puppet?
Written c2002 – a summary of the formation of ARPANSA
The Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) was established in 1999 under the provisions of the ARPANS Act.
Ostensibly ARPANSA is meant to regulate Commonwealth nuclear activities. In reality, the establishment of ARPANSA was fast-tracked by the federal Coalition Government in order to facilitate the expansion of the nuclear industry. A partner in the Freehill Hollingdale and Page legal firm told Business Review Weekly (March 15, 1999) that establishing ARPANSA was a 'critical aspect' of the Government's desire to 'enliven activity and debate in the area of atomic energy and nuclear waste'.
Most importantly, ARPANSA was established to massage through the construction of a new reactor at Lucas Heights, following the scathing comments made by the 1993 Research Reactor Review (McKinnon report) on the nature of the 'regulation' of ANSTO.
Reflecting the importance of the debate over a new reactor, and the fear that a genuine independent regulator would stop the project, the Government allowed Helen Garnett, then Executive Director of the Australian Nuclear Science and Technology Organisation (ANSTO), to sit on the three-member panel which interviewed applicants for the position of CEO of ARPANSA. Helen Garnett agreed to involve herself in this scandalous process for selecting the 'independent' regulator. Interestingly, when asked to justify this cosy arrangement at a public meeting in March, 1999, ANSTO's then Communications Manager could only say that he thought it was indefensible.
It will come as no surprise that the successful applicant for the position of CEO of ARPANSA, John Loy, has expressed no concern at the circumstances of his appointment. Who will protect the independent regulator's independence if the independent regulator does not? Worse still, Dr. Loy was appointed even before the ARPANS legislation was enacted.
It is understood that the original ARPANS Bill had ARPANSA headed by a Board, which would have included a representative of the public. However, That model was scrapped in favour of a single person answerable to the Minister and appointed on Helen Garnettπs advice.
ARPANSA's independence is further undermined by the employment of six former ANSTO staff in ARPANSA's Regulatory Branch. The Government has ignored a hard-won provision in the ARPANSA Act for a representative of the general public to be appointed to the ARPANSA Council. The position remains vacant. The federal government, without explanation has rejected several candidates. ARPANSA has done little if anything to speed this process.
Submission to Australian National Audit Office
Friends of the Earth, Australia
The following acts of Parliament were proclaimed on 5th February 1999 and are now in operation:
* Australian Radiation Protection and Nuclear Safety Act No. 133, 1998 (the Bill was passed by both Houses of Parliament on 10th December 1998).
* Australian Radiation Protection and Nuclear Safety (Licence Charges) Act No. 134, 1998.
* Australian Radiation Protection and Nuclear Safety (Consequential Amendments) Act No. 135, 1998.
The Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) also operates under the provisions of the ARPANS Regulations 1999.
The object of the ARPANS Act is "to protect the health and safety of people, and to protect the environment, from the harmful effects of radiation". The Act provides a framework for the regulation of radiation sources and nuclear and other facilities controlled or operated by Commonwealth agencies. The Act is administered and enforced by a statutory office holder - the Chief Executive Officer of ARPANSA - as part of the Commonwealth Department of Health and Aged Care.
In addition to regulating facilities and sources of radiation owned or operated by Australian Commonwealth departments and bodies, ARPANSA is expected to:
* promote uniformity of radiation protection and nuclear safety policy and practices across the Commonwealth, States and Territories;
* provide advice on radiation protection, nuclear safety and related issues;
* undertake research in relation to radiation protection, nuclear safety and medical exposures to radiation; and
* provide services in relation to radiation protection, nuclear safety and medical exposures to radiation.
The ARPANS Act applies to "controlled persons" (generally Commonwealth agencies or contractors) who undertake activities in relation to nuclear installations or prescribed radiation facilities and dealings with controlled material or controlled apparatus. (Non-Commonwealth agencies are regulated by applicable State or Territory radiation protection and environment legislation.)
The ARPANS Act 1998 requires the CEO to take the following matters into account when assessing licence applications:
a) Whether the application includes the information asked for by the CEO.
b) Whether the information establishes that the controlled apparatus, material or the conduct can be dealt with without undue risk to the health and safety of people, and the environment.
c) Whether the Applicant has shown that there is a net benefit from dealing with the controlled apparatus, controlled material or controlled facility.
d) Whether the Applicant has shown that the magnitude of individual doses, the number of people exposed and the likelihood that potential exposures will actually occur is as low as reasonably achievable (ALARA), having regard to economic and social factors;
e) Whether the Applicant has shown a capacity for complying with these Regulations and the licence conditions that would be imposed under Section 35 of the Act. Please refer to the Source Licence Application Pack and the facility Licence Application Pack for more detail regarding how to apply for a licence.
f) Whether the application has been signed by the applicant.
Flaws in the ARPANS Legislation
A number of criticisms of the ARPANS Bill were made in a June 1998 paper by lawyer Tim Robertson (from Frederick Jordan Chambers) prepared for the Sutherland Shire Council, e.g.:
* the Bill did not answer site-specific questions concerning the immunity of the ANSTO site from State environment, health and safety laws.
* the regulatory framework which the Bill established was not accountable, transparent, or fully independent.
* all regulatory functions are vested in the CEO not the Agency.
* the Bill provided wide exemptions for anything done for national security or defence purposes in relation to nuclear material or installations. Amorphous concepts such as reasonable likelihood of prejudice to national security or defence are the basis for refusing to abide by the CEO's direction or licence:
"... ANSTO can simply refuse to obey any directive of the CEO and any condition of a facility licence because it holds to the belief that to obey may be prejudicial to national security and defence."
The ARPANS Act contains all the flaws identified in the ARPANS Bill by Mr. Robertson.
There are a number of other flaws in the ARPANSA Act, e.g.:
* only the applicant can challenge a licence decision. Applicants can challenge decisions from the CEO of ARPANSA to reject a licence application, to impose conditions on a licence, to suspend, cancel or amend a licence, or to refuse to approve the surrender of a licence. Appeals are lodged with the Minister who is empowered by the ARPANS Act to override decisions made by the CEO of ARPANSA. Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Minister to confirm vary or set aside the licence decision.
* there is provision in the legislation for a representative of a licensed agency to play a role in the selection of the CEO of ARPANSA (hence Helen Garnett's inclusion on the panel which interviewed applicants for the ARPANSA CEO job).
* provisions for meaningful public consultation are lacking in the legislation.
* Section 83 of the ARPANS Act allows for a law of a State or Territory to be prescribed such that it does not apply to the activities of controlled persons under the Act. In other words, the ARPANS Act can be used to override state/territory legislation prohibiting legislation, such as the South Australian Parliament's legislated prohibitions on the establishment of a national radioactive waste repository, or a national long-lived intermediate-level waste store, being sited in SA.
Senate Select Committee Recommendations
The 2001 Report of the Senate Select Committee for an Inquiry into the Contract for a New Reactor stated:
10.1 The Committee finds that the provisions for public consultation in the ARPANS Act leave many questions unanswered. Although the present CEO, Dr John Loy, has indicated that he intends to follow a comprehensive process of public consultation, the Committee is uneasy that this is left to the judgement of the CEO rather than being legislatively guaranteed. The Committee would like to see the requirement for public consultation strengthened and made explicit in legislation and the process clearly defined.
10.2 The Committee notes that there is currently a review of the ARPANS legislation being conducted as part of the National Competition Policy. This will deal with a number of matters outside the scope of this inquiry, including the continuing problems of variations between the states on nuclear regulatory matters. However this review could raise significant issues of relevance to the current inquiry and there is a need to ensure the ARPANS legislation review is completed before any further commitments are made about the proposed new reactor at Lucas Heights.
10.3 In relation to the new research reactor project, the Committee understands that the licensing process will probably be well under way before any such changes to the legislation could be put in place. Further, it notes Dr Loy's commitment to extensive public consultation.
Nonetheless, the Committee recommends that, if the new research reactor project is to go ahead, the Government put in place a number of mechanisms to ensure that full and thorough public scrutiny of the proposal takes place during the licensing process. This is to ensure, to the greatest extent practicable, that the construction and operation of the proposed reactor would not adversely affect the health of the community or damage the environment. At a minimum, these mechanisms must include: publication of all submissions made to ARPANSA; publication of ARPANSA's responses to concerns raised in these submissions, detailing in what way those concerns have affected the CEO's decision; release of the full details of the design and the construction contract except for those items which are determined as truly commercial-in-confidence.
10.4 The Committee is of the opinion that the licence applications for the new reactor should be subject to a similar process of judicial public hearings as occurs in the United States. This will ensure world's best practice and allow for greater public involvement.
Given that there are doubts about privilege and the powers of such an inquiry to obtain documents because the ARPANS Act is silent on these issues, the Committee recommends that the Government appoint a panel including the CEO of ARPANSA under other legislative powers to conduct the inquiry.
The Committee further recommends that, in the longer term, the Government undertake a public review of the kinds of public consultation process required in other jurisdictions and in relation to other proposals with public health and environmental implications. The object of such a review should be to determine best practice and to amend the ARPANS Act accordingly.
Non-independence of ARPANSA
A draft ARPANS Bill had ARPANSA headed by a Board. That model was scrapped in favour of a single person - the CEO of ARPANSA - answerable to the Minister. The current CEO, John Loy, accepted the position of Acting CEO before ARPANSA was even established by law - the original notion of having a Board had been dismissed by the government prior to parliamentary discussion on the proposed legislation.
The federal government undermined ARPANSA's independence by allowing the then Chief Executive of ANSTO, Helen Garnett, to sit on panel which interviewed applicants for the position of CEO of ARPANSA. Asked to comment on Garnett's role in the appointment of the CEO of ARPANSA during the Senate Select Committee's Inquiry into the Contract for a New Reactor, ANSTO's response was: “ANSTO does not see what relevance this question has to the Committee's terms of reference.” (ANSTO, submission to the Senate Select Committee, 2000.) However, when asked to comment on that process at a public meeting in March 1999, ANSTO's then Communications Manager John Mulcair said he thought Garnett's involvement was indefensible.
ARPANSA's independence is also compromised by the employment of approximately six ex-ANSTO staff members in ARPANSA's Regulatory Branch.
Council & Committees
The legislation provides that that the Radiation Health and Safety Advisory Council, the Nuclear Safety Committee, and the Radiation Health Committee include a person to represent the interests of the general public. However, the Government ignored a hard-won provision in the ARPANS Act for a representative of the general public to be appointed to the Radiation Health and Safety Advisory Council by leaving the position unfilled for a lengthy period of time.
The Nuclear Safety Committee must include a person to represent the local government or the local administration of an area affected by a matter related to the safety of a controlled facility. Was that provision scrapped??
ARPANSA's 29/2/00 letter to Senator Minchin, the Minister for Industry, Science and Resources regarding the Maralinga rehabilitation, said, "ARPANSA also certifies that the burial trenches at Taranaki, TM 100/101 and Wewak have been constructed consistent with the national Code of Practice for the near-surface disposal of radioactive waste." It was well known to ARPANSA that the 1992 NH&MRC Code of Practice did not apply to the Maralinga rehabilitation - in the jargon the rehabilitation was an 'intervention' not a 'practice'. The authors of the NH&MRC Code stated that the Code was not applicable to a situation such as that which prevailed at Maralinga. Yet the irrelevance of the NH&MRC Code has never once been acknowledged by ARPANSA. By contrast, Senator Minchin belatedly acknowledged in a 17/4/00 media release that “... the Code of Practice for the near-surface disposal of radioactive waste in Australia (1992) does not formally apply to this clean up." Leaked minutes from a Maralinga Rehabilitation Technical Advisory Committee meeting quoted a senior officer from ARPANSA saying it was not necessary to meet the letter of the NH&MRC Code since it was not meant to apply to situations such as the Maralinga rehabilitation (ABC Radio National, Background Briefing, April 16, 2000, <www.abc.net.au/rn/talks/bbing/stories/s120383.htm>)
Dr Loy said in an April 17, 2000 media release that the Maralinga clean-up was "world best practice" although it was clearly short of "world best practice"; for example shallow burial of plutonium in unlined trenches certainly would not be tolerated in the UK. ARPANSA officials made suggestions about options for managing contaminated debris - such as encasement with concrete - which were simply dropped when the Department and its consultants proposed cheaper, inferior options. The contaminated debris has been buried just a few metres below grade in an unlined trench. (Alan Parkinson, DEST National Radioactive Waste Repository - A Second Round Submission to ARPANSA, 25/2/04; see also Alan Parkinson, “Maralinga: The Clean-Up of a Nuclear Test Site”, Medicine and Global Survival, Volume 7, Number 2, February 2002, <www.ippnw.org/MGS>.)
In the 1990s the Australian Radiation Laboratory was contracted to provide services to the Department of Primary Industries and Energy for the Maralinga clean-up. That contract was taken over by the Environmental and Radiation Health Branch of ARPANSA when ARL was merged into the newly-formed ARPANSA in the late-1990s. Yet ARPANSA also had regulatory responsibilities. (Issue of a Facility Licence for the Maralinga Rehabilitation Program, Statement by the CEO of ARPANSA, 30/10/2000, <www.health.gov.au:80/arpansa/mar_stmt.htm>.)
ARPANSA rarely had personnel on-site at Maralinga and thus its first-hand knowledge of the rehabilitation project was limited as was its capacity to regulate the project.
Nuclear engineer Alan Parkinson wrote in his submission to the Senate Select Committee for an Inquiry into the Contract for a New Reactor at Lucas Heights (September 2000) that "The newly formed Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) also has not performed particularly well in its first major assignment - the Maralinga project. Unless their performance as regulators improves, then the new reactor project will be a trail of compromises as is the case on the Maralinga project."
ARPANSA originally intended to licence all of ANSTO's nuclear facilities simultaneously. The process was so problematic that eventually it was abandoned in favour of a staged licensing process. Jean McSorley, then representing the interests of the public on ARPANSA's Nuclear Safety Committee, argued:
The credibility of ARPANSA, particularly in relation to its regulation of ANSTO, has been further strained since early 1999 because of the way in which ARPANSA had handled the licensing process. In early 1999, ANSTO was keen to start the licensing process for the new reactor. A major issue for the public, however, was that the existing facilities had not yet been licensed. In April 1999, however, ANSTO submitted its first licence application - to prepare a site for the new reactor. Under the terms of the licensing process the licence for the new reactor had to establish the suitability of the site for where it would be built. How could ARPANSA and the public assess the suitability of the site for the new reactor, if the current facilities and arrangements had not been fully assessed?
When the above point was put to ARPANSA the reply was that it has accepted the licence application from ANSTO, as it was the first application it (ANSTO) had submitted. So much for ARPANSA being a regulatory agency. Surely it should have directed ANSTO to put the licence to prepare a site in context - that context would have meant delaying the licence application until the existing facilities had been thoroughly examined.
This is one example of where ARPANSA appears to the working to ANSTO's timetable, rather than setting the agenda itself. Moreover, despite the best intentions of some parts of the Agency, it is basing its decisions on what it knows of ANSTO, of its "understanding" of what happens on site. This 'understanding' comes from people who were members of the Nuclear Safety Bureau, as well as former ANSTO staff who now work for ARPANSA. This is not quite as sinister as it might appear, but it this close relationship inevitably means that there is a lack of transparency because ARPANSA and ANSTO are working on an unwritten 'understanding' rather than due and open processes in which all salient points are raised for examination.
(Jean McSorley, Supplementary submission to the Senate Select Committee for an Inquiry into the Contract for a New Reactor at Lucas Heights: Comments on the role of Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) and the new reactor, 7/10/00.)
ARPANSA's handling of ANSTO's application for a licence to prepare a site for a new reactor was also problematic, e.g.:
* ARPANSA's advertising of ANSTO's application was extremely limited;
* the time allowed for public comment was insufficient;
* many were excluded from the process because they could not access a hard copy of the ANSTO application (and related documents) nor could they access the information via the Internet;
* ARPANSA failed to address some issues raised in public submissions, while other issues were dealt with in a cursory manner. ARPANSA allowed ANSTO to apply for a licence to prepare a site for a new reactor even though existing facilities had not been licensed.
Those and other problems have been evident in relation to ARPANSA's handling of other licence applications.
ARPANSA has unnecessarily and unjustifiably limited the scope of its licence application assessments. For example ARPANSA sidestepped the crucial issue of liability and insurance arrangements (or the lack of them) when assessing ANSTO's application for a licence to prepare a site for a new reactor at Lucas Heights. ARPANSA simply asserted in its Safety Evaluation Report that liability and insurance arrangements fell outside the scope of its assessment.
Dr Loy repeatedly stated that a reactor construction licence would not be granted unless progress was made towards the establishment of a store for long-lived intermediate-level waste (LLILW):
* Dr. Loy is quoted in the 3/8/00 St George and Sutherland Shire Leader saying: "... by the time a licence to construct is applied for ... the store would need to be pretty well on track so we would have confidence that it would be located and built by that time. ... Just kind of saying, 'we are going to have a store but we do not know where or when, but don't you worry about that', would not be good enough."
* “I have said ... that at the construction stage I would want to see progress towards a store. ... Should it proceed and go to a commissioning time, I would want to be very much assured that there would be a store.” (Dr. Loy in evidence to the Senate Select Committee for an Inquiry into the Contract for a New Reactor, Canberra, 9/2/01, p.553 of transcripts.)
The government's one and only plan for an above-ground store for LLILW was co-location of the store adjacent to the planned underground dump for lower-level wastes near Woomera in South Australia. Co-location was the “first siting option” identified by the Consultative Committee of Commonwealth and State Officials in 1997.
The intention to co-locate the store with the dump influenced Dr. Loy's decision to grant a licence to prepare a site for a new reactor: "It is true that the waste repository proposal is still in the development stage, that the long-lived intermediate level waste storage facility is yet to be definitely planned and no decisions have been taken on final disposal of long-lived intermediate level waste. There are significant environmental, social and political issues that will need to be dealt with for these plans to come to fruition. The question for me in this application is whether, at least in principle, I could see that there was sufficient commitment to the current plan and the general availability of alternative approaches so as to be confident that a way through would be found in a reasonable timescale. I took into account that there is clear progress on the siting of a low level waste repository and a Government commitment to examine co-locating a store for long-lived intermediate level waste in association with the repository.” (CEO of ARPANSA, 22/9/99, Issue of a Licence to ANSTO to Prepare a Site for Replacement Research Reactor Facility.)
However, by the time Dr. Loy came to consider ANSTO's application for a licence to construct a new reactor, the co-location plan had been abandoned by the federal government, and no alternative plan had been put in place. In a February 8, 2001 media release, then Minister for Industry, Science and Resources Senator Nick Minchin said:
* co-location of the LLILW store with the planned dump for lower-level wastes had been ruled out.
* the federal government would initiate a search on Commonwealth land for a site for a LLILW store and a National Store Advisory Committee had been established to identify potential sites.
The National Store Advisory Committee provided a report containing short-listed sites to the current science minister, Peter McGauran, in mid-2003 but the minister refuses to release either the report or the short-list of sites.
Dr. Loy breached his previous commitment by granting a reactor construction licence even though no progress had been made towards establishing a LLILW store.
Strangely, having cited co-location in support of his decision to grant a licence to prepare a site for a new reactor, Dr. Loy now has a very different view. For example at the February 26, 2004 forum regarding the planned dump, Dr. Loy said: “Co-location of the store I suspect ultimately might have been a political solution. The siting criteria, some of them are the same but many of them are very different in my view, and co-location was not necessarily ever a good idea.”
Dr. Loy has said that he will need to see progress on the establishment of a LLILW store before granting a licence to operate the new reactor (the application is expected to be lodged by ANSTO in late 2004):
* Dr. Loy said he would need to see "really clear progress" towards a LLILW store before issuing a reactor operating licence, "... my view is now that I wouldn't issue such a licence if there weren't substantial progress toward the store". (ABC Radio National, Breakfast, 8/8/02).
* “I certainly don't want to leave it until 2015 before a store exists, and I think it's important as far as my licensing of the replacement reactor is concerned, that at the time we come to considering the license for its operation, I can be convinced that there will be a store. Not that it's in existence, but the processes are sufficiently proceeding, and are leading to a result that will convince me that there will be a store at the time it's needed.” (ABC Radio National, PM, 13/9/02).
* “You don't necessarily have to have every loose end tied at the time of the operation license, but I have to be convinced that there will be a store.” (ABC Radio National, PM, 13/9/02).
* “The issue of the long term storage of the intermediate level waste arising from the processing of spent fuel is also debated. The Government is proceeding with the planning for a national intermediate level waste store – there is political controversy about this as illustrated by the passage of legislation in South Australia to prevent the store being sited in that State. I expect that political controversy to continue, but with careful discussion and consultation with potential communities that may host the store I have no reason to believe that one will not be established within the time scale required for management of the returning waste from the RRR, noting that the first waste would not be expected to be returned to Australia until the mid 2020s. Nonetheless, I am expecting that the matter will be pursued vigorously and that there will be significant progress by the time any licence to operate the RRR is sought. I will be writing to the Minister for Science advising him of this expectation.” (Statement by the CEO of ARPANSA, Dr John Loy – Licence to construct the Replacement Research Reactor, 5/4/02).
However Dr Loy has a track-record of breaching or revisiting and weakening similar commitments. Moreover Dr Loy has refused to specify what he means by progress - his statements have been so vague as to leave open the possibility of granting a reactor operating licence even if the government has yet to identify a site for a LLILW store let alone complete environmental approvals and complete other processes such as overriding state/territory legislation (all state governments are opposed to hosting a LLILW store, and SA and WA have legislated to ban it).
More on the reactor/waste issues:
ARPANSA CEO Ignores ARPANSA’s Nuclear Safety Committee
Dr. Loy ignored a number of recommendations contained in a February 2002 report by ARPANSA's Nuclear Safety Committee (<www.arpansa.gov.au/pubs/rrrp/nsc150302.pdf>). In particular, Dr. Loy ignored the recommendations that contingency plans for the management of radioactive waste generated at Lucas Heights be prepared by ANSTO and submitted to ARPANSA prior to the granting of a reactor construction licence. No such contingency plans were prepared either before or after the granting of the licence. Specifically, Dr. Loy ignored these recommendations from the Nuclear Safety Committee:
* “A contingency plan for additional spent fuel storage arrangements and/or spent fuel conditioning in Australia should be submitted to ARPANSA by ANSTO as part of its conditions of licence to construct the RRR [Replacement Research Reactor]. The Applicant should demonstrate a 'fall-back' position which is feasible, practical and socially and politically acceptable in case the international options are not available.”
* “That ANSTO submit a workable contingency plan for the management of Lucas Heights-generated wastes, before a licence is issued to construct the RRR. The nature of such plans should inform the conditions of the construction licence. This contingency plan should contain provisional information about alternate arrangements to the proposals for a national repository and national store currently under discussion.”
Final disposal of LLILW
The September 1999 Safety Evaluation Report of ARPANSA's Regulatory Branch said: “A licence to operate the reactor would not be issued by ARPANSA without there being clear and definite means available for the ultimate disposal of radioactive waste and spent nuclear fuel.”
However, there remain many obstacles to the interim storage of long-lived intermediate-level waste and no progress whatsoever has been made in relation to final disposal of LLILW.
Senate Community Affairs Committee - Minority Report
The following minority report by Senator Dee Margetts (The Greens (WA)) and Senator Natasha Stott-Despoja (Australian Democrats) was included in the Senate Community Affairs Legislation Committee Report on the Australian Radiation Protection and Nuclear Safety Bill 1998 and Related Legislation, tabled in December 1998 and available at: <www.aph.gov.au/senate/committee/clac_ctte/radiation/report/index.htm>
The introduction of legislation providing for the protection of the Australian community from the adverse effects of radiation and for the safety of Australians who deal with radioactive materials is extremely important. Too important to be allowed to go through Parliament without the opportunity for the Australian community to register its concerns about the regulatory regime which we will have to rely onto protect us from hazards which have the potential to remain with us for an indefinite period of time.
For that reason, this committee was called at Senator Margetts' instigation and, as predicted, heard a range of concerns expressed. Many of those concerns have the potential to be addressed by way of amendment to the legislation and the hearing has clarified the issues, providing a way forward to strengthen the protection provided by the Bill.
A number of community groups expressed concern about how much of the framework of nuclear regulation is to be contained in regulation rather than in the legislation itself.
The Government, however, is to be commended for going some way towards meeting those concerns and particularly for allowing a period of open public consultation on the Regulations which are so important to the effective functioning of ARPANSA as a regulatory body.
It does not, however go far enough and concerns remain which are outlined in this report.
One of the key concerns raised by several parties to the hearing and others who made written submissions is the fundamental issue of whether there is such a thing as a safe level of exposure to radiation.
It is the view of the minority report that there is no safe level of exposure and to legislate to allow any increase in the radiation to which any Australians are exposed is fundamentally flawed. Even following the presentations by ARPANSA and ANSTO, concern remains about the allowable exposure to radiation. A particular concern is the power of the CEO to grant exemptions which could see workers exposed to higher doses of radiation than otherwise allowed. The aim should be to have exposure as close to zero as is technically possible and there should not be power to grant exemptions.
The standard in the legislation, purports to be 'World's Best Practice'. Whilst this should mean 'As low as technically achievable' (ALATA), the standard in this legislation is set 'As low as reasonably achievable'. If this is 'world's best practice', it is not good enough, especially when we know that better standards ARE achievable elsewhere. World's best practice does not equate to IAEA acceptable levels. Standards are constantly under review and technological developments are taking place, but 'best practice' in the nuclear industry is constrained by economic forces which should not be the primary concern in a Bill to protect Australians from radiation and provide for nuclear safety.
The precautionary principle MUST be the most important consideration where nuclear health and safety issues are concerned. For this reason, we will seek to delete the threat of imprisonment for ARPANSA inspectors making a false or misleading statement in a warrant. Criminal law should quite adequately deal with criminal fraud, should that be a problem. Including threats of imprisonment in this way in this legislation could be seen as intimidatory - and not necessarily in the best interests of the community.
Despite our stated problems with the use of the term 'world's best practice', the inclusion of a requirement for the CEO to have regard to 'world's best practice' when issuing licences is an improvement on the original Bill.
For the regulatory authority set up under this legislation to have the confidence of the Australian community, it must clearly be independent of the Government of the day and be responsible to Parliament. The regulatory authority (the Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency) falls some way short of this standard because it is not an independent statutory authority. We are pleased, however, to see that the Government has now agreed that the CEO have direct power over the staffing of ARPANSA.
The recommendation to exclude nuclear power reactors from the legislation is an improvement in accountability. The Greens and Australian Democrats, however, are concerned that licenses for 'a nuclear fuel fabrication plant', 'an enrichment facility' 'a fuel storage facility' and 'a reprocessing facility' remain possible under this legislation, albeit with the approval of the CEO. These activities should either be specifically prohibited under this legislation, or at the least, should not be able to take place without full and separate Parliamentary scrutiny.
Separate approval should also be obtained for ANY other new facilities, such as a spent fuel conditioning plant, a nuclear waste disposal facility, a waste storage facility or an isotope production facility. It should be noted however that any proposal for such a facility would itself be of great concern to The Greens.
If our concerns regarding scrutiny of any proposal for any new nuclear facility are not satisfactorily addressed, we will seek to amend the definition of 'nuclear installation' to delete reference to any nuclear installation which does not currently exist.
Major nuclear installations require much greater prior scrutiny than is envisaged in the Bill. In particular there must be a comprehensive public inquiry into and Parliamentary scrutiny of the question of whether there is a need for the installation before the process even gets to the stage of an impact statement or an inquiry into the proposal itself.
No licence proposal should be considered until a public, open inquiry into the need for the installation and an impact assessment process have been completed. An amendment to achieve that end will be moved in the Committee stage of the Bill.
The proposed government amendment to give public notice of the licensing of a nuclear installation is grossly inadequate. The whole process must be open to public participation and this should be reflected in the Regulations.
There is no reference in the Bill to the regulation of, or setting of standards in the uranium mining industry, yet codes of practice in the industry were covered by the Environment Protection (Nuclear Codes) Act which is repealed by a Consequential Amendments Bill. It is desirable for the Commonwealth to have oversight of such standards and for there to be an open public process for the ongoing development and improvement of the Codes. The Bill is silent on this question.
We commend the Government on clarifying the situation regarding existing codes and development of improved codes by agreeing to have the current requirements of the Environment Protection (Nuclear Codes) Act included in the Regulations.
The only role for the community in this Bill is a purely advisory one and even there it is a role severely constrained by the legislation. A further amendment is required for protection from prosecution for Committee or Council members who make public any information or concerns they may have about radiation protection or nuclear safety.
We commend the introduction of conflict of interest provisions for Committee and Council members in the Regulations and would like to see that extended to include a register of financial interests.
There is clearly a need for the strengthening of reporting requirements throughout the Bill. We are particularly concerned that the CEO's functions include the monitoring and reporting on the operations of the Agency and it's advisory bodies, and it is pleasing to see that the Government will be moving appropriate amendments in this regard.
In summary, whilst the Greens (WA) and Australian Democrats are pleased that the Government has made some concessions to acknowledge community concerns about this Bill, we feel that further amendments are required to ensure adequate protection for the community from the dangers of radiation and nuclear activities.
Senator Dee Margetts, The Greens (WA)
Senator Natasha Stott Despoja , Australian Democrats, South Australia