The regulatory context

3.1.  Radioactive waste management is regulated by the Health and Safety Executive (HSE), as well as by the Environment Agency (in England and Wales). The Environment Agency's functions are exercised in Northern Ireland by the Department of the Environment and in Scotland by the Scottish Environment Protection Agency (SEPA). The HSE regulates the conditioning (that is, the treatment and packaging) of radioactive waste while it remains on the nuclear site. It has delegated this responsibility to its Nuclear Installations Inspectorate.

3.2.  The HSE does not regulate disposal. All regulation relating to radioactive waste disposal in the United Kingdom is carried out by the Environment Agency and SEPA and these agencies would have ultimate responsibility for regulating geological disposal. The third regulator in this area has been the Office for Civil Nuclear Security (OCNS). However, on 1 April 2007 OCNS was integrated into the HSE, where it now forms one of five divisions of the HSE's Nuclear Directorate. We will return to the issue of nuclear security below.

3.3.  To reflect their common interest in assessing the so-called "safety case" for radioactive waste management proposals, the HSE and the Environment Agencies work together and publish joint guidance. An updated version of this guidance has just been published and at the time of writing was available for consultation and trial use.[18] As an example of how this joint process works, Mr McHugh of the Environment Agency told us that "we advise the HSE's Nuclear Installations Inspectorate on whether a particular packaging proposal should be allowed to proceed" (Q 211).

3.4.  Another player in the regulatory process hitherto has been Nirex (now merged with the NDA). Nirex have developed, and own the intellectual property to, the Phased Geological Repository Concept (PGRC) which is used as a benchmark in order to provide packaging and conditioning guidance to waste producers.[19] In the last edition of their joint guidance, the regulators set out the arrangements for the regulation of intermediate level waste conditioning.[20] This involved Nirex in issuing "Letters of Comfort" to site licensees, assessing whether their proposed form of waste packaging conformed to the PGRC. This process has been described by the Environment Agency as "the regulators' preferred route for licensees to demonstrate that ILW Conditioning Proposals meet the relevant international packaging standards and the anticipated requirements for final disposal"[21]. Indeed, in 2005 Nirex changed the name "Letter of Comfort" to "Letter of Compliance", to indicate their strengthened role in the regulatory assessment process.[22]

3.5.  On 2 April 2007 the NDA announced that following the integration of Nirex into the NDA, the functions previously undertaken by Nirex will now be performed by a new Directorate within the NDA—the Radioactive Waste Management Directorate. The regulators expect this new division to act as the adviser to site licensees on the conditioning of radioactive waste.[23] From the new joint guidance published by the regulators in February 2007, we understand that the advice will continue to be provided through the Letter of Compliance process until such time as either the NDA decides on a new process or an implementation contractor takes over this function.[24]

3.6.  The announcement on the new Directorate, made on the NDA website, also hints at possible future developments:

"The NDA will use its new Radioactive Waste Management Directorate to design and build an effective implementing organisation to deliver a safe, environmentally sound, publicly acceptable, geological disposal solution. It is envisaged that in due course this new organisation will become a wholly owned subsidiary of the NDA. Once a suitable site has been selected the subsidiary can develop into the repository Site Licence Company. Considerable future dialogue with Government, regulators and the supply chain will be required before this step is taken."

We shall be following these developments with interest.

3.7.  Already at this stage the integration of Nirex into the NDA raises a potential conflict of interest: the NDA, the organisation in charge of decommissioning existing nuclear sites, and therefore the producer of waste, now incorporates the organisation which develops waste disposal concepts, gives advice about them and which, in this role, even if not a regulator, is nevertheless part of the regulatory process. In written evidence, NuLeAF also pointed to the potential conflict for the NDA in delivering advice on packaging requirements and at the same time pursuing a cost-saving agenda.[25]

3.8.  When we asked the Environment Agency to whom they would refer for technical standards, now that Nirex had been absorbed into the NDA, Mr McHugh drew attention to the Agency's own expertise in this area, and told us that the Agency had "developed … its regulatory capacity" in this area by setting up an "internal nuclear waste assessment team to scrutinise Nirex's work" (Q 211). The Agency will seek agreements with NDA similarly to scrutinise the work of the Repository Division on packaging advice. The Agency also told us that they were in the process of revising their guidance on the requirements a repository would have to meet, last published in 1997, that in the preparation of this they had not relied on Nirex for their regulatory judgement. At the same time they were keen to stress that Nirex's intellectual property for the PGRC was unique and that this, along with some specific technical expertise, needed to be preserved, maintained and enhanced (Q 211).

3.9.  We explored the issue of a potential conflict of interest with the Minister. He argued that whilst Nirex was an adviser to the industry on standards of waste packaging, "it is not the standard setter, these are the different regulatory agencies" (Q 117). His comments were echoed by Mr de Grouchy, who told us that "the Letter of Comfort system is an important one but it is essentially an administrative process and the people who regulate and who set the standards have always been the regulatory bodies" (QQ 117-118).

3.10.  However, during the course of our inquiry we were made aware of a legal opinion dating from September 2006, which had been commissioned by Nirex from Christopher Katkowski QC and Stephen Tromans, and which was subsequently released following a Freedom of Information request. This opinion raised concerns about the legality of the NDA/Nirex merger.

3.11.  The opinion argued that Nirex had exercised a quasi-regulatory function, and that by undermining the independence of this regulatory function, the merger "would give rise to serious issues as regards the UK's compliance with International Law and Community Law".[26] In particular, the merger could conflict with a requirement under Article 20 (2) of the International Atomic Energy Agency Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, which requires that:

"Each Contracting Party, in accordance with its legislative and regulatory framework, shall take the appropriate steps to ensure the effective independence of the regulatory function from other functions where organizations are involved in both spent fuel or radioactive waste management."

3.12.  The opinion also argued that, following the European Atomic Energy Community (EURATOM) accession to the Joint Convention in October 2005, the Convention entered into force for EURATOM members in January 2006. This meant in turn "that the Community's compliance and enforcement mechanisms (including the possibility of seeking a judgment from the European Court of Justice) apply to the obligations contained in the Joint Convention."

3.13.  When questioned about this, the Minister offered to consider our requests for clarification on this matter (Q 119). However, in reply to a letter from the Chairman, the Minister reiterated that his Department had been made aware of the legal opinion, but offered no explanation of the legal basis for the Government's view; instead he stressed that the decision to incorporate Nirex into the NDA had been made following "careful consideration" of the views of Nirex, the NDA and others (p 41).

3.14.  This lack of openness in such a sensitive matter is unfortunate. The recent successful application by Greenpeace in the High Court for judicial review of the Government's consultation preceding the Energy Review showed that lack of information and transparency, not just with regard to nuclear energy policy, but also with regard to nuclear waste issues, can lead to successful legal challenges.[27] Such challenges could have the potential seriously to undermine the geological disposal programme.

3.15.  Although we accept that Nirex's role is not formally a regulatory one, it does appear that the Letter of Compliance system is intimately linked to the regulatory process. Through the Phased Geological Repository Concept, which is currently used as the benchmark for compliance, Nirex holds an important stake, as well as unique technical expertise, in the setting of packaging standards for the industry, to such an extent that it may justly be described as a "quasi-regulator". We therefore agree with the Environment Agency that the current arrangements, whereby Nirex has been absorbed into the NDA, is "not ideal" (Q 222). It remains to be seen whether they will be subjected to legal challenge.

3.16.  It should be emphasised that the current arrangements are only temporary, pending the appointment of an implementation contractor. We were also assured by the Environment Agency that its Nuclear Waste Assessment Team has sufficient expertise for thorough and technically robust scrutiny and that the Agency has "not relied on Nirex for our regulatory judgments" (QQ 211, 212). However, these assurances do not fully allay our concerns.

3.17.  A legal opinion, casting doubt on the legality of the merger between Nirex and the NDA, has now been released. We recommend that the Government now publish in full their view of this legal opinion and their reasons for proceeding with the merger in spite of it.

3.18.  We agree with the Environment Agency that the setting of packaging standards from within the NDA can only be a transitional arrangement, and we recommend that, in order to ensure rigorous independent regulatory scrutiny, an implementation contractor should be appointed within the next two years.

Research and development

3.19.  The CoRWM report also recommended that there should be "a commitment to an intensified programme of research and development into the long-term safety of geological disposal aimed at reducing uncertainties at generic and site-specific levels, as well as into improved means for storing wastes in the longer term."[28]

3.20.  While our inquiry was underway, a report summarising the findings of a workshop on nuclear waste management held at the University of Loughborough was published.[29] The report, which was agreed by experts from across the nuclear waste management sector, concluded that whilst there were no insurmountable scientific and technical barriers to geological disposal, there was a need for a focused and substantial R&D programme so that geological environments and storage requirements could be well understood. The research would also provide important technical information which will be required for regulatory assessments. It should be aligned with key stages in the repository programme so that it can deliver the relevant outputs at relevant times.

3.21.  Although our inquiry was not able to explore these technical issues in detail, the Environment Agency highlighted some of the specific technical challenges that a geological repository research programme would need to address. Current technical issues included research on how a repository design could be optimised and other issues relevant to waste conditioning and packaging. Later in the programme, the research would inevitably need to become more site specific (Q 232).

3.22.  The Environment Agency also pointed to researchable socio-economic questions which could be integrated with an R&D programme. These would explore the socio-economic impact of any proposals based on scientific findings, especially answering questions of appropriate trade-offs. Importantly, the research should focus on "a decision-making framework that will define what trade-offs are acceptable and how they might be bounded" (Q 232). We have already referred to the Royal Society's evidence which highlighted the importance of researching not only scientific but also socio-economic questions, especially with regard to developing site-screening criteria (Chapter 2, paragraph 28).

3.23.  In its response to CoRWM's recommendation, the Government accepted the need for ongoing research and development. It referred to the NDA's statutory function to carry out research related to the design, construction and operation of a repository. In undertaking this work, the NDA would have to pay due regard to the views and requirements of the Government, the regulators and the independent advisory body.[30] The NDA expected that at least some of this research would be carried out by the integrated Nirex (QQ 63, 68).

3.24.  The lead responsibility for R&D in this area lies with the DTI. In October 2006 the Secretary of State announced that, following a review of the United Kingdom's nuclear research and development needs, the Government expected to establish a National Nuclear Laboratory (NNL) as soon as practicable (HL Deb, 24 October 2006, WS105). The NNL will be based around the British Technology Centre and Nexia Solutions, a BNFL subsidiary, in Sellafield. The NNL is expected to play a key role in supporting the United Kingdom's strategic research and development requirements. In addition, the Minister gave us a further reassurance that, leaving aside the usual difficulties with securing long-term spending commitments, there was a cross-party commitment to R&D spending for the waste disposal programme (Q 143).

3.25.  We welcome the Government's support for a new nuclear research and development facility. However, the NNL will have a wide remit whereas the geological disposal programme requires a separate and specific R&D activity. We therefore urge the Government to consider giving responsibility for the long-term planning and co-ordination of the required R&D for the MRWS programme to the new CoRWM constituted with scientific, technical and socio-economic expertise. This would ensure that the programme was optimally integrated with policy needs. The research itself could still be carried out at the National Nuclear Laboratory.

Skills

3.26.  Closely interlinked with R&D is the supply of specialist skills. Alongside its general responsibilities for decommissioning, the NDA has the function to educate and train a skilled workforce able to undertake the work of decommissioning.[31] To this end, it is supporting a number of initiatives including the establishment of a National Nuclear Skills Academy in West Cumbria. It is also working towards strengthening its links with universities and has recently entered into an agreement with the University of Manchester's Dalton Nuclear Institute to fund a new nuclear research centre, the Nuclear Skills Institute, in West Cumbria.

3.27.  Given the above initiatives, and with the existing expertise and skills contained within Nirex and Nexia Solutions, the NDA was confident about the supply of specialist skills in the near term (Q 81). Both the NDA and the Environment Agency highlighted the importance of drawing on international expertise in order to complement the United Kingdom's research capacity (QQ 78, 233).

3.28.  However, concerns about an ageing nuclear workforce remain. In particular, the Loughborough Workshop report highlighted the "very significant decline in R&D funding in nuclear fission, and equally a decline in the nuclear skills base" and called for a "nuclear skills renaissance" in order to revitalise the skills base in this sector.[32]

3.29.  We welcome the different initiatives undertaken by the NDA and by the Government to ensure the supply of specialist nuclear skills. However, particular attention should be paid to training up and maintaining the specific expertise and skills required for the long-term geological disposal programme.

Nuclear Security

3.30.  Nuclear security in the United Kingdom is regulated by the Office for Civil Nuclear Security (OCNS), which is now part of the HSE Nuclear Directorate.

3.31.  The CoRWM report raised concerns about the interim storage of radioactive waste and its vulnerability to potential terrorist attacks. During one of its specialist workshops on nuclear security, security experts—a group which included the Assistant Director of the OCNS, John Reynolds—recorded their "unanimous opinion that greater attention should be given to the current management of radioactive waste held in the UK, in the context of its vulnerability to potential terrorist attacks". Furthermore, the experts were "not aware of any UK Government programme that is addressing this issue with adequate detail or priority".[33]

3.32.  We pursued this issue with both the NDA and the Government. We were surprised at first to hear that the NDA considers security to be a matter solely for the OCNS (QQ 83, 85). However, in a supplementary memorandum, Sir Anthony Cleaver informed us that "all nuclear licensed sites, including those owned by the NDA, are required by the Nuclear Industries Security Regulations 2003 (NISR 03) to produce a site security plan, to submit this for approval to the Office of Civil Nuclear Security (OCNS) (the independent civil regulator) and to take all measures necessary to comply with that plan" (p 22).

3.33.  We were also reassured by the Minister that "current security measures are robust" but that "it is best not to go into great detail in publishing security plans" (QQ 163, 166).

3.34.  We agree that it would not be desirable to publish operational detail regarding the specific security arrangements at nuclear sites but we would endorse Fred Barker's comments that it would be "possible to talk about the process by which competent security arrangements might be gained" (Q 245). Furthermore, the supplementary memoranda from both the NDA and the Government reveal that some of the information relating to nuclear security is very much in the public domain (pp 22, 41).

3.35.  The Government must engage in a much more open dialogue with local communities and other stakeholders regarding the risks presented by current temporary storage and the steps taken to address them. We therefore recommend that the Government review the amount and level of detail of information on nuclear security that is made available to stakeholders or published. Security arrangements form an integral part of the implementation programme and information on their nature should be readily available.

19   Environment Agency, Review of the Nirex Research Programme, Version 2.0, August 2006, p 3. Back

20   HSE, EA and SEPA, Conditioning of intermediate level radioactive waste on nuclear licensed sites-guidance to industry (March 2005). Back

21   Ibid. Back

22   Ibid. Back

23   HSE, EA and SEPA, The Management of radioactive waste on nuclear licensed sites (February 2007). Back

24   Ibid. Back

25   NuLeAF written memorandum referring to NuLeAF policy statement, Institutional arrangements for implementation (October 2006), p 5. Back

26   In the Matter of UK Nirex Ltd, Opinion by Christopher Katowski QC and Stephen Tromans, 15 September 2006 (unpublished). Back

27   R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311. Back

28   CoRWM, Managing our Radioactive Waste Safely-CoRWM's recommendations to Government (July 2006). Back

29   Loughborough University Workshop (6-7 November 2006), UK Long Term Nuclear Waste Management: Next Steps? (February 2007). Back

30   UK Government and the Devolved Administrations, Response to the report and recommendations from the Committee on Radioactive Waste Management (CoRWM) (October 2006), p 10. Back

31   Energy Act 2004, section 7 (1a), section 9 (2a). Back

32   Loughborough University Workshop (6-7 November 2006), UK Long Term Nuclear Waste Management: Next Steps? (February 2007), p 29. Back

33   CoRWM, Managing our Radioactive Waste Safely-CoRWM's recommendations to Government (July 2006), Chapter 16. Back