Second-round submission to ARPANSA

National Radioactive Waste Repository Licence Applications

April 19, 2004

Prepared By:

Jim Green

National Nuclear Campaigner

Friends of the Earth, Australia

120 Wakefield St, Adelaide, SA, 5000.

Ph: 08 8227 1399, 0417 318 368

Email: <jim.green@foe.org.au>

Contents

Summary

Licence Assessment Process

Net Benefit

Social Costs

Indigenous Rights

Siting

ANSTO's Radioactive Waste

DEST's Capabilities and Track Record

Monitoring, Retrieval and Sampling

Acronyms

ANSTO - Australian Nuclear Science and Technology Organisation

ARPANSA - Australian Radiation Protection and Nuclear Safety Agency

DEST - Commonwealth Department of Education, Science and Training

EIS - Environmental Impact Statement

FoEA - Friends of the Earth, Australia

ILW - Intermediate-level waste

LLILW - Long-lived intermediate-level waste

LLW - Low-level waste

Summary

The Department of Education, Science and Training's applications for licences to build and operate a national radioactive waste dump in South Australia should be rejected by ARPANSA CEO John Loy on several grounds including

* the failure of the proponent to establish a net benefit associated with the proposal (or even to attempt to establish a net benefit).

* DEST has not shown a capacity to comply with licence conditions imposed by ARPANSA as it is required to do. On the contrary DEST has demonstrated - through the botched 'clean-up' of Maralinga, and also the dump controversy - its inability to manage such projects competently, transparently, and honestly.

The dump licensing process has been unsatisfactory and the final round of public consultation ought to be of at least two months duration to partially remedy past inadequacies.

Licence Assessment Process

Friends of the Earth, Australia (FoEA) welcomes ARPANSA's intention to hold a further round of public consultation. However that process will be of little value unless the public is given a reasonable opportunity to respond to a large and growing amount of material and thus FoEA asks for a minimum two month period for the final round of public consultation following public availability of all relevant documents including the IAEA report and reports from the two ARPANSA Committees (the Radiation Health Committee has working groups addressing transport and waste acceptance criteria, and the Nuclear Safety Committee is assessing hydrogeology and engineered barriers).

FoEA is concerned that even with one final round of public consultation, important matters will remain unresolved and will be settled in a non-transparent manner. One aspect of the controversy over this particular dump plan illustrates the importance of time and transparency. The government's preference to build the dump on the Woomera Prohibited Area would have gone largely unchallenged if not for the efforts of civil space industry organisations and the Defence Department. Only when faced with a growing public controversy did the government seek two independent consultant reports - both of which recommended against siting the dump in the WPA.

More generally FoEA believes the dump licensing process has become as unwieldy and unworkable as ARPANSA's attempts in the late 1990s to licence all of ANSTO's nuclear facilities simultaneously. Just as ARPANSA abandoned that process, so too the simultaneous assessment of the federal government's three dump licence applications should be abandoned in favour of a staged process. In this respect FoEA endorses the recommendation of the draft report of the International Atomic Energy Agency review team for a staged licensing process. George Jack, a panelist at the ARPANSA forum in Adelaide on February 25-26, noted one set of problems arising from the simultaneous applications:

FoEA notes that Prof. Ian Lowe, a panelist at the ARPANSA forum in Adelaide, argued in his written report that it would be "very difficult" to accede to a single-step approval of the three applications:

The proposal by the Commonwealth Department of Education, Science and Tourism raises technical, environmental, managerial, political and cultural issues. The DEST proposal is so clearly deficient in several of these areas that it would be very difficult for the regulator to accede to the Department's request for a single-step approval. The Australian Radiation Protection and Nuclear Safety Act requires the regulator to be assured of the safety of the proposal, its net benefit and the capability of the proponent to manage the proposed facility. On the evidence presented to the public forum, there are significant unanswered questions in each of these three areas. If the regulator does not reject the proposal, I believe that he should certainly require the proponent to provide much more satisfactory assurances than have been given in the licence application and evidence to the public forum.

FoEA's first submission to ARPANSA contained a list of questions which have been sent to DEST by FoEA and also by ARPANSA CEO John Loy. No answers to those questions had been received as at April 19, 2004.

Net Benefit

The NHMRC Code of Practice for the Near-Surface Disposal of Radioactive Waste in Australia (1992) requires that "No practice involving exposures to radiation should be adopted unless it produces sufficient benefit to the exposed individuals or to society to offset the radiological detriment it causes."

The ARPANS Act states that the key objective of ARPANSA is "To protect the health and safety of people, and to protect the environment, from the harmful effects of radiation." Section 41 of the ARPANSA Regulations 1999 lists matters the ARPANSA CEO must take into account when considering a licence application, including: "Whether the applicant has shown that there is a net benefit from carrying out the conduct relating to the controlled facility." That requirement is also specified in subsection 32(3) of the ARPANS Act.

The ARPANSA forum in Adelaide confirmed FoEA's view that DEST has not established that the dump would result in a net reduction in radiological hazards to the Australian population. In fact DEST has not even attempted to substantiate its claim that the proposed dump will result in net benefits with respect to radiological hazards (let alone that the alleged benefits justify the additional social and democratic costs associated with the dump). The dump licence applications should be rejected by ARPANSA on those grounds.

FoEA notes the following section of the transcript from the ARPANSA forum in Adelaide on February 26:

PROF LOWE: Dr Perkins, you told us this afternoon that the community and the environment will benefit if this proposal goes ahead because you said disposal of the waste in a purpose-built national repository will reduce the cumulative risk of storing waste. Are there any risk calculations that substantiate that or is that just a general feeling that you have as an applicant?

DR PERKINS: Well, it's a general feeling. I might ask my colleagues if they can comment on the calculations, but really what I'm saying is that under the current arrangements, particularly in stores from universities, hospitals, et cetera - these aren't set up for long-term management of material and there are examples - I gave a couple of examples where records of sources have been lost and safes or places where sources are kept have actually been sold to scrap metal merchants. So I guess what I am saying is there clearly aren't, in ad hoc storage as it is at present, arrangements to manage the material for the life of the radioactivity of the material, and it's under circumstances such as these where the sources can be lost.

PROF LOWE: I understand that but anecdotes don't make good science. I suppose what I'd like to see is some assurance that the process of collecting, transporting and storing these orphan sources around the country will reduce the cumulative risk to the community over and above what is posed by being in these different places now.

MR RYAN (GHD - consultant to DEST): In terms of someone sitting down and doing that risk assessment, that hasn't been done - the short answer is it hasn't been done.

PROF LOWE: Sure, okay.

MR RYAN: With a general belief, I guess, that that central storage, because of those sort of reasons, is a more satisfactory way.

ARPANSA must reject the view of DEST and its consultants that a "general feeling" and a "general belief" suffice to establish the case for the dump.

FoEA notes the conclusions drawn by Prof. Lowe in his written report:

"DEST told the forum that "Disposal of the waste in a purpose-built national repository will reduce the cumulative risks of storing wastes", leading to the conclusion that "The community and the environment will benefit". Questioning revealed that the basis for this assertion is shaky. It is by no means clear what the exact scale of the current problem is.

... In the absence of solid information about the scale and physical distribution of the existing waste, it would be hard to do even a rough risk calculation that would justify the claim that a repository would "reduce the cumulative risk".

... However, no attempt has been made to estimate the increased risk of collecting and transporting this waste to the repository, even in orders of magnitude. Assuming the aim of the exercise is to ensure that the handling of waste represents minimum risk to the community, it needs to be shown that collection and transport represent a relatively low risk compared with storage. It is clear that the community needs to be reassured on this point.

... I conclude that a minimum condition for the approval of this application, as one of the submissions to the public forum argued, would be provision of a credible inventory of the existing low level waste, both in quantity and characterised by activity levels, with at least a rough calculation of the overall risks involved in collecting that waste and transporting it to the proposed site. Since the proponent asserted that the existing waste storage facilities are nearing their capacity, I trust there are data that can be supplied to the regulator to substantiate that claim. The applicant told the public forum that no transport specification had been developed in the absence of an operating licence. In terms of process, it would be reasonable to argue that a transport specification that persuaded the regulator that waste could be moved to the site at acceptable risk should be a pre-condition for the issuing of an operating licence, rather than a task to be attempted only after the granting of a licence.

... With a proposed time cycle of 3 to 5 years between campaigns, local storage will clearly continue to be needed during these interim periods. So one of the goals of the proposed repository - to end the current system of waste being stored in many locations around the country - will not be achieved. There would be a reduction in the volume of waste stored at some of these sites, but the proposed scheme of operation ensures that local repositories will still be needed."

... There are some difficult issues to be resolved if the applicant is to show that the proposal would provide a net benefit to the community, most obviously including a risk assessment to determine whether the increased risk of collecting and transporting waste is outweighed by the reduced risk of storage at a properly engineered repository; this study should take into account the continuing need for local storage of waste between the proposed disposal campaigns. A professional risk assessment cannot be conducted until a firm waste acceptance plan and transport code are developed."

In contrast to the irrefutable point made by Prof. Lowe - that a risk assessment would require more detail on and analysis of transportation issues - a DEST consultant argued at the February 26 hearing that it would be presumptuous to be addressing transport issues in the absence of dump licences!

On the question of how many existing stores would / would not be cleared out once and for all if the dump goes ahead, the response from DEST official Dr. Perkins at the Adelaide forum was illogical:

Dr. Perkins: “I note something has been made of the fact that waste producers will have to continue to use all their stores during the time between campaigns. In actual fact, a lot of the waste which is currently existing is a result of historical practices. In other words, it's not generated any more - for example, old exit signs in which tritium was used; things like radium needles. So in actual fact, once the historical waste is cleared out, I believe many of the existing stores in places like hospitals and universities essentially won't have any backlog of waste at all, and they're generating new sources at quite a slow rate - a very slow volume.”

DEST failed to directly address the question as to how many stores would / would not be cleared out. Moreover, Dr. Perkins simply reinforced the point made by critics of the proposed dump: that many existing waste stores will continue storing waste even if the dump proceeds. Further, providing an out-of-mind-out-of-sight dumping option, combined with the federal government's glaring indifference to the status of existing waste stores, will encourage poor management practices if and where they exist. Further, a comparison of alternative waste management options must also account for the possibility of more profligate waste production if waste producers have the option of dumping their waste and transferring responsibility for it to DEST. Conversely, a more serious attitude to waste minimisation is likely to prevail if waste producers are required to manage their own waste on-site.

The following question was put to DEST last year: "Regarding the storage of radioactive waste in 26 towns and suburbs in SA, what number of these stores will still be storing radioactive waste even if the repository project goes ahead because of ongoing waste production?" DEST's response, received on 27/11/03, was as follows: "This question should be directed to the South Australian Environment Protection Authority or to the operators of the existing stores." DEST has no idea how many stores will / will not be cleared out once and for all if the dump goes ahead.

More importantly, DEST does not know what proportion of Australia's waste is stored by institutions which continue to produce waste and must therefore have adequate on-site storage facilities and expertise. Ignoring the CSIRO soil stored at Woomera (which accounts for 54% of the national volume of waste destined for the dump but just 0.005% of the radioactivity), it is likely that a very large majority of waste is stored by institutions which continue to produce radioactive waste and ought therefore to be able to manage their existing stockpile as well as future arisings. ANSTO alone is responsible for 78% of the existing waste volume to be trucked to Woomera using the EIS figures, and ANSTO itself acknowledged at the ARPANSA forum in Adelaide that it is quite capable of managing its own waste.

Prof. Lowe writes in his report: "Since the proponent asserted that the existing waste storage facilities are nearing their capacity, I trust there are data that can be supplied to the regulator to substantiate that claim." In fact DEST has no idea whether or not existing stores are nearing capacity. DEST's own data suggests that the claim is either an exaggeration or a fabrication. For example using DEST-supplied data on radioactive waste stored in SA, the average stockpile per institution is just 0.15 cubic metres.

As for the general condition of existing stores, DEST was asked last year to provide evidence for its claims regarding "unsafe" existing stores. DEST's response on 27/11/03 was to cite just two alleged examples of unsafe storage.

Further, DEST was asked "is the federal government planning to take action (legal or otherwise) against those responsible for unsafe storage?" The response from DEST was as follows on 27/11/03: "Legal action in such cases is the responsibility of the appropriate state and territory regulators to whom your question should be directed." DEST was also asked: "What plans does the federal government have to upgrade stores since the government repeatedly claims that they are unsafe." DEST responded as follows: "This question should be referred to the appropriate state and territory regulators." Clearly DEST takes no interest in ensuring that existing stores are properly managed and this failure is all the more significant since many/most waste stores will continue storing waste even if the dump goes ahead. The claim from the federal government and DEST to be pursuing the dump project in the interests of public health and environmental protection is clearly false.

George Jack, ex-ANSTO employee and panelist at the ARPANSA forum in Adelaide, states in his written report:

In fact, I see the whole issue of net benefit as being one of the most difficult aspects of Dr. Loy's decision-making. Central to that difficulty is how one weighs the benefits (perceived or real) that are derived by certain sections of society against detriments (perceived or real) that occur to other sections of society. Attempts to determine relative risks quantitatively are likely to be unproductive if one also quantitatively assigns error bars to the results obtained, and can be downright misleading of one does not do that. Instead of attempting the quantitative approach, one is almost forced to use qualitative arguments for and against a proposal, ending with the unavoidable use of expert judgement. In western societies, the responsibility for exercising judgement on societal matters is usually the prerogative of politicians and parliament, and it seems to me that the Commonwealth Government has already decided that the creation of a national radioactive waste repository is in the best interests of Australia. Further discussion of that could therefore be seen as a waste of time, unless the Commonwealth's experts, in this case ARPANSA, were to find some safety problem of such a magnitude as to outweigh the benefits perceived by the Government.

... Arguments that the repository is not needed are irrelevant to the licensing decision once the responsible government has decided that a repository is in the national interest. The factor that is then most relevant is the safety of the siting, design, construction, and operation of the repository.

FoEA contends that Mr. Jack's comments are illogical:

* the ARPANS Act specifically states that the CEO of ARPANSA is to address the question of net benefits, whereas Mr. Jack contends that the CEO does not.

* to the extent that a quantitative analysis of radiological hazard can inform the broader debate it is clearly imperative that such an analysis be carried out (whereas the government has not compiled the empirical information necessary for such an analysis and certainly has not carried out any such analysis).

* had the federal government adequately addressed issues such as indigenous concerns and opposition to the dump, the CEO of ARPANSA would be justified in ignoring those issues in his assessment. However, those issues have been handled in a manipulative, deceitful and totally unsatisfactory manner as discussed later in this submission, and in FoEA's first submission, and in other submissions, in particular from the Kupa Piti Kungka Tjuta and the Irati Wanti Campaign Office.

A comparative analysis of the options of establishing the dump versus ongoing storage by waste producers also requires much more information on the dump proposal.

* information on the waste inventory is inadequate as noted by Prof. Lowe in his written report. Further, Mr. Cooper from EnviroRad - a DEST consultant - noted that: "Certainly there is a great deal of uncertainty in the inventory information that was provided."

* the draft report of the International Atomic Energy Agency review team demonstrates that a great deal more work remains to be done to assess the safety of the proposed dump site.

* information and assessment of transportation is also lacking as DEST has acknowledged.

FoEA notes that the recommendations contained in its initial submission are very similar recommendations have been made by Prof. Lowe. The recommendations contained in the initial FoEA submission are as follows:

1. A detailed national inventory of radioactive waste should be compiled by DEST and publicly released.

2. DEST should also carry out and publish an empirical study on the conditions of existing stores.

3. Using that information, ARPANSA ought to commission an independent study comparing the radiological hazards of the proposed dump with an alternative scenario involving storage at the site of production (including options for upgrading stores if and where necessary).

During the ARPANSA forum in Adelaide, Prof. Lowe queried whether DEST is the most appropriate organisation to be carrying out an audit of existing waste stockpiles. Given DEST's track record of mismanagement and it inability to compile an accurate inventory at any stage over the past decade, FoEA endorses Prof. Lowe's concerns and recommends that the audit be carried out by a more competent and transparent organisation, possibly under the oversight of ARPANSA.

Democratic Costs

DEST has failed to establish a net benefit with respect to radiological hazards. In addition, there are significant social and democratic costs associated with the dump proposal. These include the undemocratic nature of the government's dump plan. The federal government has compulsorily acquired the dump site and transport corridor against the wishes of all parties with an interest in the land. The federal government has ignored legislation banning the proposed dump which passed through the SA Parliament in March 2003 and was indefinitely extended in July 2003. The SA Parliament is reflecting the will of an overwhelming majority of South Australians.

Mr Jack questioned the level of public opposition to the dump in his report. However the SA public has demonstrated its interest in the dump issue (e.g. attendances of 1000 at a public meeting at the Adelaide Town Hall in 1999, and 300-400 at a public meeting in 2002) and its opposition to the dump (e.g. one petition being signed by 150,000 people). The extent of the opposition to the dump proposal was detailed in FoEA's first submission.

Indigenous Rights

Major 'costs' associated with the dump plan concern the overriding of Indigenous peoples' opposition to the dump, the imposition of radiological hazards on their land, and the annulment of Native Title rights and interests. These social costs alone ought to lead to the rejection of the DEST dump licence applications.

FoEA contends that DEST has repeatedly misrepresented Indigenous groups:

* DEST has rarely if ever acknowledged that clearance was granted under duress, i.e. that explicit threats to use compulsory acquisition powers were made, and in fact on 30/4/99 the federal government issued a section 9 notice under the 1989 Land Acquisition Act.

* it is misleading for DEST to claim, as it repeatedly does, that clearance was granted for test drilling without also noting that those clearances in no way amounted to consent to the dump and that the government has compulsorily acquired the dump site and transport corridor, annulling Native Title rights and interests in the process.

* it is plainly false for DEST to claim that: "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, p.245, 251 & 252).

Prof. Lowe notes in his report to ARPANSA that the opposition of Indigenous people "certainly cannot be ignored".

FoEA rejects the claim by Mr. Jack that "... the current proposal bears absolutely no resemblance to the nuclear weapon testing of the past. Nor do its possible consequences." There are clear parallels:

* the dump represents another forced imposition of radiological hazards.

* Aboriginal land has been seized in support of the dump proposal just as it was for the weapons tests.

Siting

If a dump was required somewhere in Australia, and it was true that SA was the "best and safest" site for a dump as the government and DEST have repeatedly claimed, then the safety advantages of establishing the dump in SA would need to be weighed against the various radiological risks and social and democratic costs. However it is simply not true that SA is the "best and safest" site as discussed in FoEA's first submission to ARPANSA. The Bureau of Resource Sciences identified equally suitable land in five states/territories. As the SA Environment Minister noted in his presentation to the ARPANSA forum, Peter Slipper, the Parliamentary Secretary to the Finance Minister Nick Minchin, noted in a 2003 letter to the SA government: "It was possible that there were other sites in Australia, apart from the three sites mentioned, which could have been shown to fully meet the stringent siting requirements set out in the NHMRC Code."

DEST has not attempted to refute any of the points made about siting in FoEA's first submission. Previously, the federal government has made false claims to justify its siting decision. Specifically, when comparing the SA region with the western NSW Olary region, federal science minister Peter McGauran claimed that the NSW region was ruled out because it partially overlaps water basins. In fact the SA region partially overlaps the Great Artesian Basin just as the NSW region does.

ANSTO's Radioactive Waste

FoEA notes that there is general acceptance that ANSTO is capable of managing its own waste on site, albeit the case that improved waste management systems and greater transparency are required at ANSTO.

Dr Clarence Hardy representing the Australian Nuclear Association at the ARPANSA forum in Adelaide on February 26: "It would be entirely feasible to keep storing it at Lucas Heights ..."

Dr Ron Cameron from ANSTO, at the ARPANSA forum in Adelaide on February 26, when asked by Prof. Lowe if ANSTO could continue to manage its own waste and what the implications of that would be: "Really, we believe there are none. ANSTO is capable of handling and storing wastes for long periods of time. There is no difficulty with that. I think we've been doing it for many years. We have the capability and technology to do so. We are prevented by a change that was made to the ANSTO Act at the response of Sutherland Shire Council from becoming a de facto repository. It's not allowed by the ANSTO Act. But we have the storage capability and the technical capability to store our own waste, certainly."

ANSTO is responsible for 78% of the existing waste volume destined for the dump, and will be responsible for 81-90% of the waste volume over a 50 year lifespan. If ANSTO was to continue to manage its own waste, the volume of non-ANSTO waste which might be sent the planned dump in SA is so small that it could not possibly justify the social or economic costs, nor is it at all clear that the dump would reduce overall radiological risks with or without inclusion of ANSTO's waste.

DEST's Capabilities and Track Record

FoEA notes that DEST's ability to manage the project has been seriously challenged by nuclear scientists who have first-hand experience of DEST during the Maralinga 'clean-up' - Prof. Peter Johnston and Alan Parkinson.

Peter Johnston, Professor of Nuclear Physics at RMIT, and scientific adviser to the Maralinga Tjarutja, presentation at the ARPANSA forum (presented in his absence):

The applicant has inadequate technical competence to manage its contractors.

... DEST is responsible for the Former Nuclear Test site at Maralinga, as well as the Repository project. DEST was an ineffective manager of the Maralinga Cleanup in a number of key ways. The pattern of contracting required services for the Repository project is similar to the Maralinga cleanup.

Effectiveness of DEST during the Maralinga Cleanup: DEST follows the philosophy of contracting all requirements to a Repository Operator, who is a contractor. Safety is in the hands of the operator. The equivalent organisation to the Repository Operator at Maralinga could bid for other work that would be under its operational management. The primary source of advice came from this contractor. At times the project was not fully in DEST's control.

Failures: DEST concluded a contract with Geosafe Australia for technical services that contained no performance criteria. Draft documents prepared by DEST have often been technically wrong due to a lack of technical input. Non-technical public servants made decisions where technical expertise was needed. Technical advice often not sought except from a contractor.

Accountabilities: The Project Director is non-technical. The Repository Manager is a contractor. The Radiation Safety Officer is a contractor employed by the Repository Operator.

So where does the effective control and the risk lie?

Effective Control and Risk: Effective control lies with the contractor not DEST, because it lacks the technical skills to supervise its contractor. The risk associated with the release from the repository lies with the community and the Government of Australia.

Inability to manage: The applicant has not demonstrated effective control. Effective control is normally required by the licence conditions imposed under section 35 of the ARPANS Act.

... The applicant has inadequate technical competence to manage its contractors.”

See also Prof Johnston's written submission to ARPANSA.

In a second-round submission to ARPANSA, Alan Parkinson, a nuclear engineer with extensive first-hand knowledge of the Maralinga 'clean-up', writes:

"It has to be noted that the same group responsible for the debacle of the Maralinga project have responsibility for the radioactive waste repository. On the Maralinga project they showed without any doubt that they had no experience or knowledge of radioactivity and no expertise at all in project management. They have publicly shown their complete lack of understanding in project management methods, radiation and other technical issues. Thus they are not equipped either to approve the design of the facility or see it through the construction period. I have not seen anything which tells me which organisation will be responsible for the operation of the facility. But if they are as poorly qualified as those now responsible for the repository then they too will be unqualified."

Mr. Parkinson provides numerous examples of senior DEST personnel demonstrating an alarming lack of knowledge about even the most basic scientific and nuclear issues. Mr. Parkinson also demonstrates DEST's lack of project management competence, such as the failure to include performance criteria in a major contract (vitrification of debris at Maralinga), the assertion from a DEST officer that it is wise to "always seek compromises with contractors", and the appointment of a company to manage the Maralinga project despite that's company's complete lack of experience with, and limited knowledge of, the vitrification technology which was central to the second half of the Maralinga project.

Mr. Parkinson concludes his submission:

"The deficiencies in project management and knowledge of radiation in general within DEST makes it very difficult to see how the government can successfully manage the construction of the radioactive waste repository. There is no government department qualified to undertake the role and unless DEST is prepared to take on engineering expertise within its own structure, I can see no way that the project should be allowed to proceed. But if DEST were to employ some in-house engineering expertise, those currently responsible would have to step aside, or the same problems that I experienced will resurface."

Few if any of the criticisms raised by Prof. Johnston or Mr. Parkinson have been answered by DEST let alone successfully refuted.

The claim from Dr. Perkins (DEST) that "DEST has core capabilities in terms of management of contracts and of contractors" was less than convincing.

FoEA notes the comments by Prof. Lowe in his written report:

"In this case, where the facility if approved will be operated on behalf of the community to reduce the risk from low-level radioactive waste, political accountability should demand that the Department responsible show its capacity to manage the repository. If that capacity does exist, it was not demonstrated at the public forum, confirming Johnston's criticism.

... The material supplied by the applicant and the evidence given to the public forum raise very serious questions about the capacity of the applicant to manage the project effectively to guarantee public accountability; it is difficult to see how the proposal could be approved unless those concerns can be resolved to the satisfaction of the regulator.”

Further, Prof. Lowe said on February 26 at the ARPANSA forum: "I think it would probably help us if at some point we could have something in writing that refutes Prof Johnston's critique of the Maralinga operation." No such refutation has been provided by DEST. Many of the points are irrefutable - for example, it is a simple but astonishing fact that DEST drew up and signed a contract for vitrification at Maralinga without any performance criteria.

FoEA notes that a number of questions posed by Mr. Jack at the ARPANSA forum to DEST and its contractors were left unanswered or were inadequately answered. Mr. Jack:

"I'm interested in the line of responsibility and chain of command in all of this proposed operation. I understand DEST is the licensed applicant, but there's extensive use of consultants, contractors. For example - and I'm going to quote here out of a document: "Any review or comment by DEST on design documentation shall not transfer design risk to DEST." This is on the repository operator's design, but I thought the repository operator was hired by DEST, and this seems to me like DEST trying to offload responsibility to a contractor. This worries me immensely from a safety point of view if that is the case, and this is fundamental. I see later on the safety committee is to identify emerging safety and radiation matters and advise on recommendations, but it doesn't say advise whom. Where does the advice go? I'm not clear about the radiation safety officer. Is he there as a line manager of some of the activities involving radioactive material or is he there as an expert health physicist on the side ready to intervene? If he's there as a line manager, he's not sufficiently independent to spot problems in time to do anything about them. So I wonder if you can talk a little bit about this whole structure of management responsibility and how it's divided between DEST, the contractors and the consultants, because I also see that consultants are hired by DEST but managed by the contractor, and I'm wondering how that will work out in practice because I can imagine problems."

FoEA notes Mr. Jack's comments on the inadequacy of project documentation and sees this as one aspect of the broader problem that DEST has not "shown a capacity for complying with these Regulations and the licence conditions that would be imposed under Section 35 of the Act" as it is required to do.

Mr. Jack:

“During my preparations for the Public Forum, I was struck by what I can only describe as the inadequate quality of documentation submitted by the licence applicant. Others also mentioned this during the Forum. I was therefore pleased to hear what seemed like a near-commitment by DEST to re-submit an entire set of documentation if regulatory approval seems likely. But I was left wondering whether that was adequate.

In many nuclear regulatory systems around the world, the regulator calls up the application as a condition of any licence that is issued – i.e. the licensee is then legally obliged to live up to promises made during the assessment and review process. I believe that this would be extremely difficult for ARPANSA to do with the documentation in its present state. It is not entirely clear which statements supercede others (as distinct from enlarging on them); there are several instances of slightly different statements being made on the same topic; and there are several instances of documentation that is not yet written. The usual sequence of events in a nuclear regulatory process is for the regulator to issue a licence only after receiving complete, satisfactory documentation, and so my experience suggests that revised documentation should perhaps be a pre-requisite for a positive decision rather than something that follows such a decision.

The complexity of the documentation is partially due to the fact that the applicant has applied in one step for site preparation, construction, and operation approval. As was pointed out by the International Peer Review Team, those approvals are usually considered in a sequential process in other jurisdictions, thereby allowing the documentation to be also prepared in a sequential process based on what has already been approved. The applicant's own statements that certain detailed documents will not be prepared until the project advances simply highlight that. Clear, unambiguous, documentation is a necessary feature of a well-managed nuclear facility; without it, the probabilities that abnormal events will occur increase rapidly. It is to be expected that some of those abnormal events will have safety connotations. Therefore it is nothing less than essential, in my opinion, to have documentation that will withstand detailed scrutiny – and the present documentation is not of that calibre.”

Mr. Jack also raised strong concerns of DEST's ability to manage contractors and to manage the project generally:

"One of the areas where the documentation lacks some clarity, and which was raised at the Forum, concerns the roles and responsibilities of the licence applicant, the various contractors that are hired by the applicant, and the various consultants. Some of the documents submitted as part of the licence application have been written by a consultant or contractor and are not even on the applicant's letter-head. Authorship is not ultimately important if the licensee completely accepts the responsibility for the project, but as was pointed out in the Forum, some phrases in the documentation state bluntly a limitation of the licensee's (as distinct from the contractor's) liability. Other parts of the documentation are not so explicit, but leave the reader wondering about the degree to which the licence applicant will indeed be truly accountable and responsible if a positive licensing decision were to be taken.

It is completely understandable in a project which is intended to operate on a campaign basis, as this is, that an agency such as DEST would not plan on having its own expert staff to carry out all the tasks. It is another matter altogether, however, if there are serious questions about the applicant's ability to manage the necessary contracts in such a way that will ensure that regulatory responsibilities are fully respected. It was therefore very regrettable that Professor Johnston was ill and unable to attend. His written presentation casts doubts on these very issues, and I would have welcomed the opportunity to pursue some of the points in the presentation with him in the form of questions. His absence is also regrettable from the applicant's point of view, since the questions that were raised by his comments remain as a sort of cloud hanging over the proposal. It would therefore seem highly appropriate for Dr. Loy and his staff to take Professor Johnston's comments into account in their continued assessment of the application. This is especially true in the light of the discussion during the final afternoon of the Forum, which was not persuasive that the applicant would aggressively take ownership of the project and ensure that public safety and interests would be the highest priority. For example, assurances were given by contractors, but without the detail needed to make them useful, that there would be an effective quality assurance program in place to guard against the possibility that a waste generator might hand over a waste package that does not conform to the waste acceptance criteria. In an area as crucial as this is to the safety of the entire project, the responses from the applicant's team were disappointing. Another example concerned the statements in the documentation prepared by consultants that stated that non-radioactive toxic substances such as lead would not be accepted for disposal, but that lead shielding inside a waste package would be acceptable. The responses to these and other questions were less than convincing that the applicant was in a position to effectively judge and control the work of its contractors.

The final concern that I have about the relationship between DEST and its contractors lies with the department itself. It would appear that the proposed national radioactive waste repository, although obviously important, commands only a small percentage of the department's attention. Those experienced in government operations naturally worry whether the department will therefore assign sufficient priority to the project on a continuing basis far into the future, or whether a relatively small project such as this will become forgotten and disappear into oblivion within the department, especially if it operates trouble-free for several years. I wish to emphasize that this comment is not in any way intended to cast doubts on the sincerity or capability of current officials – it is the sort of event that happens in some large government departments over time. And this project will require good management over a prolonged period of time."

Mr. Jack writes in his concluding comments: "The relationship between the Applicant and its contractors, and the capability of the former to manage the latter, is bothersome and bears further examination."

Monitoring, Retrieval and Sampling

Tony Ryan, from GHD, a DEST contractor, said at the ARPANSA forum on February 26: "We'll be recording the location of each waste package and we're going to backfill with a cementaceous material. The intention there is that if the drums are tightly packed, trying to put something between the drums and compact it so it doesn't settle in the future is quite difficult. A cementaceous material overcomes that issue." However in the following exchange Ryan says the waste is "recoverable" from the dump - how so if the dump is backfilled with cementaceous material?

The following excerpt from the ARPANSA forum on February 26 highlights DEST's failure to address potential problems with the dump:

DR LOY: I guess the other thing is about contingency planning. You take all these precautions; you build a repository that is properly designed; the material is in its drums and its concrete and so on. What do you do if, five years later, you see some radionuclides in the sampling you take of the water at the bottom of the repository? What happens then? Something has gone wrong.

DR PERKINS: I think what you do is, if you get one anomalous measurement, you obviously initially want to check it and try and work out what radionuclides they are, if the anomaly is only in one hole; if it's reproducible, if it's being picked up in other holes. I think what you would have to do, too, is - remember the waste is isolated in the centre of a large site - perhaps even potentially put in a few more bores to see if you can check progress in terms of movement of the radioactive material to determine whether it is going to be an issue with consequences of the site.

DR LOY: Are there specific plans within the management system, a kind of response plan to an event?

MR RYAN: There is no specific plan written in terms of how you would recover all the waste. Basically it's low-level disposal; it's recoverable. I guess in your investigations if you did determine that in fact the process was not going as expected, then you do have the ability to recover it. But in terms then of coming at it step by step or the consequences, I think you've got a fair bit of investigation you would do before you'd – to typify what the problem is - before you would entertain those solutions.

DR PERKINS: The answer is, detailed procedures would pick up exactly the chain of what would be done under certain circumstances.

If the dump goes ahead, the waste ought to be stored in such a way as to facilitate monitoring and to facilitate retrieval of some or all of the waste. That would also preclude a proposal flagged by Dr. Loy in the September 2002 Australasian Science that much of the CSIRO soil stored at Woomera could be used as backfill in the dump. Storage in such a way as to facilitate monitoring and retrieval would have consequences for on-site security and for the broader assessment of the costs and benefits of DEST's dump proposal.

In addition to its inadequate assessment of operations of the dump, DEST and its consultants were unconvincing at the ARPANSA forum when quizzed about sampling of waste packages:

MR JACK: I hate to put it this way but will there be any actual sampling ever be done? It's all very well to get documentation from the waste generators, which purports to show that the waste is within the acceptance criteria that are specified and accepted, but if there's never any actual testing that this is actually being done, there is then the possible perception that some people will deliberately deceive DEST or the contractor and that this would be not detected unless there is some perhaps occasional, but occasional, sampling methodology or some testing like this that could be held up as a deterrent. Have you any comments on this, please?

MR COOPER (EnviroRad - DEST consultant): I think it's very important that there is some sort of monitoring and testing of the packages. It's difficult when it's in a conditioned form, of course. To get a reasonable understanding of what's in the package from an external measurement of something which is surrounded by a significant amount of concrete will be difficult, but there are ways and means of that in terms of perhaps neutron detection and so forth.

MR JACK: But is this planned to occur?

MR COOPER: Yes, it's part of the plan.

MR RYAN: Can I just say the answer to that is yes. We're currently looking at what devices are needed when you do this handover, that you can do some sort of in-drum measurement to get some understanding of what's actually inside the drum. As Malcolm said, there's a question of how accurate a reading they get because of internal shielding, but having said that, there will be some capability to do testing.

Mr. Jack noted in his written report:

"It would therefore seem highly appropriate for Dr. Loy and his staff to take Professor Johnston's comments into account in their continued assessment of the application. This is especially true in the light of the discussion during the final afternoon of the Forum, which was not persuasive that the applicant would aggressively take ownership of the project and ensure that public safety and interests would be the highest priority. For example, assurances were given by contractors, but without the detail needed to make them useful, that there would be an effective quality assurance program in place to guard against the possibility that a waste generator might hand over a waste package that does not conform to the waste acceptance criteria. In an area as crucial as this is to the safety of the entire project, the responses from the applicant's team were disappointing."