ACF submission to Loy March 04

Friday 12^th March 2004 120 Wakefield St, Adelaide, SA 5000

Tel. 08 8232 2566 Fax: 08 8232 2490

Email: d.noonan@acfonline.org.au Web: www.acfonline.org.au

To: John Loy CEO of ARPANSA

For: Repository Project Management Officer

PO Box 655

Miranda NSW 1490

ACF submission to Repository Licensing following Forum / further information

Dear John

Australian Conservation Foundation appreciate your commitment at the Forum to a further period of public consultation on the Repository Licensing Application. ACF seek your agreement for this consultation period to be for a minimum 8 weeks following public availability of the final documents, information and studies.

This should include the IAEA Review Team final report and Working Group reports from the two ARPANSA Committees being made public as they become available.

ACF request that as CEO you address and change a range of matters regarding the ARPANSA licensing process and respond to these so as to inform the public review.

Including that you take a first stage approach to licensing, addressing the related issues of siting, design and Waste Acceptance Criteria, and for Transport Licensing to be fully addressed under a later Operations License assessment process.

I set out matters and information ACF consider you should require the proponent to provide within the final application documentation to then be subject to public review.

Principally on information and studies needed to contribute to the statutory Net Benefit Analysis; on ARPANSA respecting Aboriginal Custodians’ rights and interests and refuting DEST’s false claims of agreement; on required Siting and Design Studies including ACF’s position that above ground storage should have to be addressed; to demonstrate an agreed capacity for emergency response in Transport; and on related Inventory and Waste Acceptance Criteria issues.

Please feel free for ARPANSA Officers to call David Noonan for any discussion or clarification of this ACF submission, mob 0408821058 and 08-82322566. Please note that this submission is additional to the ACF submission to you of 17^th Nov 2003.

Yours sincerely

David Noonan B.Sc., M.Env.St.

ACF Campaign Officer

Letter of Introduction and Public Consultation 1

1. ARPANSA Licensing process is not international best practice 2

2. Transport Licensing process and further work by DEST 2

3. Aboriginal Custodians’ Rights and Interests 4

4. Required Siting and Design Studies 5

5. Inventory and Waste Acceptance Criteria 7

6. Required Net Benefit Analysis 9

Attached:

Indigenous Advisory Committee correspondence of 14^th April 2003 to Parliamentary Secretary Sharman Stone and to Minister Environment David Kemp.

1. ARPANSA Licensing process is not international best practice

ACF has long held the view that this ARPANSA Repository Licensing process is an inappropriate ‘fast track’ and also lacks any comprehensive assessment of or credible approval process for transport issues.

The IAEA Review Team concur that this one step license process is not international best practice and call for a more step by step process:

“The Application for siting, design, construction and operation of the facility in a single step over looks the more step by step approach that is now considered to be international best practice. A single step approach precludes the iteration considered to be necessary to achieve, demonstrate and give confidence in the safety of the facility. It is recommended that alternatives be explored to take the licensing process forward in a more step by step manner.”

(Summary, Approach to Safety Assessment and Documentation, p.3, IAEA Jan 2004)

ACF expect the ARPANSA CEO to act on this advice and on his obligation to provide international best practice and to change the licensing process.

On required changes to the ARPANSA Licensing process ACF recommend:

· A first licensing step address the interdependent issues of siting, design and waste acceptance criteria. Subsequent licensing steps should address construction and operation including an explicit focus on transport issues.

2. Transport Licensing process and further work by DEST

ACF appreciated the CEO’s recognition at the Forum that the proponent must do further work on transport issues. ACF believe and recommend that ARPANSA must change the proposed approvals process to dedicate a licensing step that comprehensively addresses transport issues as part of the operations assessment.

ACF recommend changes to the Transport Licensing process:

· The Repository Application should have to include full ARPANS Act assessment and Licensing decision process on transportation of all Commonwealth radioactive wastes with full public consultation rights provided.

The present ARPANSA position that some subsequent application may determine the licensing course for transportation issues is clearly untenable and allows the proponent to direct and manipulate the ARPANSA process. It is not credible of ARPANSA to propose to decide on an Operations License without fully addressing transportation.

ACF call on the CEO to take responsibility for assessment of transport issues and act to redress this fundamental licensing flaw.

In particular the stated option of Commonwealth Agencies such as ANSTO using existing licenses to authorise transport of their wastes under their own legislation is exactly the sort of circumvention of due process that will fail to “achieve, demonstrate and give confidence in the safety of the facility.”

ACF recommend further work on transport issues to:

· Require DEST demonstrate specific and agreed capacity(s) in place by NSW and SA State Governments and Emergency Services Agencies governing safety of proposed transport of reactor and other Commonwealth waste as a pre-requisite of the Repository Application;

And

· Address the failure of DEST to provide any contingency plan to that of imposing road transport against the advice and the will of SA and NSW State and Local Governments, community and Emergency Services, and against the law in SA.

The onus should be on DEST to demonstrate an agreed and existing capacity with the States of NSW and SA for management of radioactive waste transport and for emergency response. The proponent so far merely citing a Transport Code of Practice does not demonstrate safety or capacity for emergency response.

ARPANSA and DEST must publicly answer the stated NSW Government’s position.

With Minister for Environment Bob Debus citing the best NSW Emergency Services advice available to him on the lack of reality in claims by DEST that transport of reactor wastes across NSW could proceed safely, and restated his Governments’ opposition to this reactor waste transport plan:

“The Fire Brigades management points out that it is inconceivable, in effect, that any transportation of waste could possibly take place without very specific changes to the present disposition of resources of the Fire Brigades and, indeed, without very substantial expenditure on equipment.

All of which adds weight to the proposition that there is an absolute necessity for the community of this State and especially the community along any possible transportation route to be given proper and full information or an opportunity for transparent discussion and the opportunity for political response to such proposals. We absolutely need to understand how waste would be transported, if it were to be transported at all, and the Government's decision remains one of opposition to those matters.”

In: Evidence before NSW Parliamentary Inquiry into Nuclear Waste Transport and Storage, Public Hearing at Katoomba 26^th September 2002.

3. Aboriginal Custodians’ Rights and Interests

ARPANSA must publicly accept, respect and act on the position of Aboriginal Custodians that they have never given any agreement or consent for construction and operation of the Repository, and that the site is of significant cultural value.

Prior to site selection decisions Federal Government decision makers were made directly aware of this position of traditional owners by the Indigenous Advisory Committee to the Federal Minister for Environment The Hon David Kemp in correspondence of 14^th April 2003 to Parliamentary Secretary Sharman Stone:

“The IAC would like to request yourself and Minister Kemp consider the views of traditional owners in opposition to this project.”

“The Kupa Piti Kungka Tjuta, senior Aboriginal women of north SA, fundamentally oppose this nuclear waste dump which they see as the imposition of poison ground onto their traditional lands. The Kokatha people, as registered native title claimants, oppose the nuclear waste dump and the intended acquisition and annulment of their native title rights and interests."

ACF attach the IAC letter, which was formally copied to ACF, for your consideration.

Key Aboriginal Custodian groups, including the Kokatha Native Title Management Committee through their formal spokesperson Roger Thomas and the Kupa Pedi Kungka Tjuta senior Aboriginal women, have repeatedly made clear they have never given any agreement or consent for construction and operation of the Repository.

It is offensive that DEST have repeatedly falsely asserted the contrary in claims made at the recent ARPANSA Public Forum and in the EIS documentation, including:

“The relevant Aboriginal groups have cleared the preferred site and two alternates, and the access to them, for all works associated with the construction and operations of a waste repository.”

(Draft EIS, Summary, Cultural Heritage – Aboriginal, Results of the Work Area Clearance Surveys p.24, May 2002); and

“The preferred sites and two alternatives have been identified by Aboriginal groups as not containing areas of significance for Aboriginal cultural heritage, and have been cleared for all works associated with the construction and operations of the repository.”

(Draft EIS, Ch. 11 Cultural Heritage p.245, and repeated at Ch.11.1.3 p.251 & Ch.11.1.4 p.252).

In addition PPK Consultants signed an incorrect “Certificate of Compliance” (Draft EIS inside cover, 31st May 2002) on behalf of the proponent DEST asserting that:

“I certify that I have prepared the contents of this statement / report and to the best of my knowledge: …

· it is true in all material particulars and does not by its presentation or omission of information, materially mislead.”

Aboriginal groups contested these false statements and this was recognised in the Supplement to the EIS, Ch. 11 Cultural Heritage p.89, Jan 2003:

“The Aboriginal heritage clearance process is described in Sec.11.1.3 of the Draft EIS. Nowhere in that section or elsewhere in Ch. 11 is it stated or implied that involvement by Aboriginal groups in the cultural heritage clearance surveys represented Aboriginal approval of the repository.”

Unfortunately DEST continued with their false claims at the ARPANSA Public Forum.

Originals of the “Work Area Clearance Agreements” (1999-2000) in question are held by DEST and by The Aboriginal Legal Rights Movement in Adelaide.

ACF consider that:

· It is ARPANSA’s responsibility to provide a public correction of DEST’s false claims and to require them to formally withdraw these false claims made in the Draft EIS and at the Forum as part of the final application documentation.

ACF endorse the MAPW position (Submission of Feb 2004, p.6) that:

“”Population health studies in other communities around the world suggest likely deleterious impacts on health if their right to control their lives is further eroded. The imposition of a national radioactive Waste repository against the wishes of the Kungka Tjuta is likely to cause further deterioration in health parameters.

Given the well documented current poor health status of Australian Aboriginal peoples, this potential health effect should be a critical determinant in ARPANSA’s rejection of the DEST license applications.”

ACF recommend that:

· The CEO of ARPANSA should publicly set out how you will address the rights and interests, including health, of traditional owners in the required ARPANS Act sec.41(c) Net Benefit Analysis;

ACF calls on ARPANSA to:

· Respect the human and cultural rights, native title and rights to procedural fairness of traditional owners by rejecting the Repository application.

4. Required Siting and Design Studies

The Federal Minister for Environment Dr David Kemp, the SA State Government and the IAEA Review Team Report have all called for further siting studies from the proponent. However, ACF note that in response to the IAEA IRT Report Senator Minchin stated on ABC “PM” (30^th Jan 2004) that the Federal Government sees no further need to do testing unless it is requested to do so by ARPANSA.

ACF recommend that:

· ARPANSA should now require this range of siting and design studies to be conducted and provided by DEST as part of the final repository application documentation to inform the public review period and the licensing consideration;

And

· Studies of above ground storage siting and design be required to be carried out along with the Application waste burial model and a comparison of above ground and burial options be required and included in the ARPANSA net benefit analysis.

Further siting requirements set by Environment Australia:

“The Commonwealth DEST must submit to the Minister the results of:

· localised field investigations of surface and groundwater modelling, and flow undertaken on the proposed site; and

· targeted surveys for Frankenia plicata and the Plains Rat (Pseudomys australis) at the proposed site. “

(In: Minister Kemp’s “Decision to Approve Taking of an Action”, 7^th May 2003, Annexure 1.)

ACF consider that it is reasonable for this to be carried out now as is a condition of the EPBC Act Environmental Approval that these investigations and surveys must be conducted to the satisfaction of the Minister, and be submitted prior to the submission by DEST of a final EMMP, which must in any case be approved by the Minister prior to the commencement of the construction of the Repository.

Further siting requirements set by the SA State Government:

“I reiterate this Government’s strong opposition to the establishment of this facility in South Australia and reaffirm that we can not, and will not, provide support to the establishment or operation of the facility, particularly when the Commonwealth has failed to adequately prescribe the design of a facility which could result in detrimental environmental outcomes.”

In: Letter of 22/10/02 from Hon John Hill Environment Minister to Hon Dr David Kemp Federal Minister for Environment and Heritage.

A summary of SA Agencies technical comments on the Repository was attached to this letter as the SA Government submission to the Draft EIS setting out fundamental shortcomings which are still not addressed by the Repository License Application.

“Design Criteria:

The following concerns relate to the design of the facility.

· The design philosophy adopted by the proponent which creates the potential for environmental harm to occur as a result of leachate migration to the watertable as defined by the SA Environment Protection Act. The facility is “designed to leach” rather than each storage cell being totally sealed.

· There is no assessment of the impacts on site hydrology which may occur as a result of accelerated climate change resulting from global warming and the associated implications for site design criteria.

…..…..

Ground Water:

· The assumptions made on the nature and characteristics of the geological units (including soils) are questionable. The site is more likely to be characterised as a fractured rock or double porosity medium, rather than a porous medium as assumed in the EIS. There are implications on the fate of any potential leachate at the site due to the complex nature and different behaviours of fractured rock acquifers.

· The schedule of groundwater monitoring lacks an adequate groundwater monitoring network and does not adequately define what constitutes a contamination event of uncontaminated groundwater, or an excursion of contaminated groundwater. It does not adequately develop risk management strategies to ensure zero/minimal impacts on groundwater, and contingency plans to be implemented in the event of a contamination event or excursion, and explore expected effectiveness.

· The EIS has not determined or established a groundwater exclusion zone

Extract of “Summary of SA Government Agencies Technical comments on the Draft EIS for the proposed Repository near Woomera” 22/10/02.

Further siting requirements set by the IAEA Review Team Report:

“Further work is necessary to determine safety for the purposes of licensing construction and operation of the facility.” (Summary p.2, Jan 2004);

“9. The IRT suggests that site based experiments be conducted to demonstrate the feasibility of creating the necessary repository barriers and to build confidence in their performance.” (Safety Case Development and Documentation p.3);

“23. The IRT recommends that the disposal zone (within the inner fence) should be characterised (borehole and/or pits) to confirm the geological, hydrogeological and geochemical characteristics of the disposal zone.” ;

“24. The IRT recommends further studies of the faults and fractures on the site (as already requested by Environment Australia) to evaluate their potential influence on groundwater movement and allow, if necessary, their effect to be incorporated into the safety assessments.”; and

“25. The IRT suggests that the Applicant should conduct a more extensive study of the geomorphology of the site. This should aim to explain how the site has evolved to the present day so that its future evolution, as expressed in the safety case, can be fully justified.” (System Description 23-25 p.5).

5. Inventory and Waste Acceptance Criteria

Waste Inventory information setting out the current inventory and proposed waste arisings over the 50 year period of Repository operations is fundamental to the right of public appraisal of the project.

It is clearly required for any credible assessment of net benefit and directly relevant to issues of safety and environmental impacts.

DEST have failed to facilitate public appraisal of Inventory issues by only providing the “Design Inventory” and “Waste Arisings” as 50 year decay corrected data.

The Inventory is clearly dependent on and sensitive to the proposed definition of the Waste Acceptance Criteria (WAC).

With increasing recognition by consultants to DEST that a range of sealed sources and gauges are too concentrated to be safely subject to shallow burial and have to be managed by ongoing above ground storage.

Serco Assurance Consulting have recommended that many sealed sources be removed as unsafe from the “Preliminary Inventory” proposed by DEST.

With over half of the Cesium-137, over 80% of Radium-226 and over 90% of Americium-241 cited in the Preliminary Inventory to be left out off the Design Inventory (Appendix K Supplementary Information to ARPANSA, p.1, p.12, and Table 5.1 p.21, Dec 2003).

The ‘sensitivity’’ of the inventory to the final WAC is such that some 1400 of 4100 sources or gauges in the “current inventory” may be unsafe for inclusion depending on where the WAC ‘defining line’ is placed between Category S or Category B.

In estimating the number of sources or items of radioactive waste in the “current inventory” EnviroRad Services Pty Ltd of GHD Consulting identify some 1400 industrial gauges/sources and luminous instrument dials/materials as possibly of Category S (Appendix I, Supplementary Information to ARPANSA, Table 3, Dec 2003).

Category S is clearly not allowed to be included in wastes for the Repository as either too concentrated or as is of long lived wastes being unsafe for shallow burial.

This compares to some 2700 calibration/reference/laboratory sealed/unsealed sources and miscellaneous sealed sources that are cited as “Category B” intended for the Repository (ibid Appendix I, Table 3, Dec 2003).

ACF consider it is unacceptable for the proponent, rather than the regulator, to be determining WAC that are fundamental safety standards for the proposed facility and which can have such major variations in the actual inventory proposed to be used.

It is clear that the Inventory provided by DEST in the EIS (Supplement to EIS, Appendix C Table C.1 “Revised Inventory”, January 2003) can no longer be considered relevant to Licensing assessment of the Repository.

ACF call for ARPANSA to require DEST to publicly provide:

· The actual current inventory and future waste arisings proposed for the Repository, by radionuclide and total activity, and by holder of the wastes between State / Territory Governments and Commonwealth Agencies;

· The actual Waste Acceptance Criteria proposed for the Repository;

· An assessment between the inventory of current wastes proposed for the Repository, and the inventory of current wastes now considered unsafe for shallow burial and to require ongoing above ground storage at existing sites;

· Net Benefit Analysis to include required ongoing management at existing sites of these wastes that have been found to be unsafe for the proposed Repository, clearly lessening the claims of benefit from the Repository plan that were made by DEST in the EIS and at the recent ARPANSA Public Forum.

6. Required Net Benefit Analysis

ACF recommend the ARPANS Act sec.41(c) Net Benefit Analysis include addressing (and requiring relevant evidence from the proponent regarding):

· The overriding of democratic rights of South Australians with the will of the Parliament and the law in SA and of the people clearly against the Repository and associated waste transport;

· The rights and interests, including health (as per the MAPW recommendation), of traditional owners;

· Comparative and quantified community risk analysis of continued onsite storage verses the Repository centralised transport risks and burial plan risks over time;

· Quantified analysis of the claimed reduction of existing storage sites if the Repository were to go ahead, given that all continuing users need to have and maintain on site storage facilities for at least 5 yrs arisings of wastes in any case;

· Comparative costings be presented for enhancing onsite storage facilities for organisations acruing radioactive wastes verses the Repository plan with its associated continuation of onsite storage facilities for existing users in any case;

· Required ongoing management at existing sites of these wastes that have been found to be unsafe for the proposed Repository, clearly lessening the claims of benefit from the Repository plan that were made by DEST in the EIS and at the recent ARPANSA Public Forum;

· Studies of siting and design for above ground storage be equally carried out along with the Application waste shallow burial model and a comparative analysis of above ground and burial options be conducted and released;

ACF further request ARPANSA to:

· Provide a public explanation of how these matters will be included in the CEO’s decision making and analysed regarding net benefit as per sec.41 (c) by the time of release of the final application documentation.