Mr Fred Barker, Mr Clive Bates, Dr Joe McHugh and Dr Clive Williams

19 FEBRUARY 2007

  Q200  Lord Howie of Troon: That seems to me to be contentment with slight misgivings, would you say?

  Mr Barker: Yes.

  Q201  Lord Howie of Troon: They perhaps relate to CoRWM's position in scrutiny. I think Mr Barker suggested earlier on that there was some ambiguity there, am I right?

  Mr Barker: I am sorry, could you clarify, ambiguity in?

  Q202  Lord Howie of Troon: In CoRWM's position with regard to scrutiny?

  Mr Bates: That was me.

  Q203  Lord Howie of Troon: Was it you, I am sorry. With regard to that, if there is ambiguity and if you are slightly dissatisfied with CoRWM's position regarding scrutiny, do you think there should be an independent body, perhaps including such organisations as The Royal Society and appropriate learned societies, which would oversee CoRWM's position, a kind of wicketkeeper, I suppose?

  Mr Bates: There is a very clear important role for CoRWM in providing advice commissioned by the Government which is embodied in the existing terms of reference. The question for scrutiny boils down to what is to be scrutinised and on whose behalf. The Government has to have its policy and carry it through, it is elected and so on, you cannot have continuous challenge to that, but in terms of looking at whether the system is working and functioning as it is intended to do, then there is scope for some sort of scrutiny role and CoRWM could play a role in that but it is not the only body. In terms of enlisting learned and professional societies, there are arguments both ways there; there is the gravity and a sort of public trust and confidence that those organisations attract but, on the other hand, you may want to select particularly highly qualified individuals based on their personal stature and personal knowledge and build them into something like CoRWM or some other body which is scrutinising the implementation plans. I do not think it is cut and dried anyway and, organisationally at the Environment Agency, we do not have a position one way or the other, just to remark, it is left ambiguous at present.

  Dr Williams: Although we wish to have clarity of process. As I mentioned before, I think the point that the way in which the regulators operate is complementary to CoRWM's process, is going to be extremely important.

  Q204  Lord Howie of Troon: Yes, but CoRWM obviously is acutely aware of the political background to all of this, and I am thinking here of the purely scientific problems which might arise.

  Dr McHugh: I think there is definitely a role for the learned societies to give their advice in relation to the scientific quality of CoRWM's advice.

  Q205  Lord Jenkin of Roding: I would like to go back to what Mr Bates was talking about a few minutes ago, the memorandum of understanding, which you have in relation to some of the existing regulators in their existing tasks. It seems to me as this discussion has developed that there could be a very good case for having a memorandum of understanding between the regulators and CoRWM. Do you envisage doing that?

  Dr McHugh: We have a memorandum of understanding with the NDA as the implementing body, and we will expect to be regulating the subsidiary body, the contractor to the NDA. Whether we need a memorandum of understanding with CoRWM? We have certainly had meetings with CoRWM and there have been very open exchanges with them. They have even come to us for advice and peer review of their documents, Clive Williams has done that. Whether it needs to be underpinned by a memorandum of understanding with CoRWM? I have an open mind on that.

  Q206  Lord Flowers: We have heard that CoRWM's position in all this is a bit unclear at the moment, so you cannot really judge whether you need a memorandum of understanding or not at this stage?

  Dr Williams: I think that is where we are at the moment, that is right, and that will need to be developed as Government sets out its proposed framework and consultation document.

  Q207  Lord Jenkin of Roding: When I re-read the evidence that we had from the Minister at our last sitting I was struck by the fact that when he talked about the role of CoRWM, both scrutinising and advising, he drew a distinction that they would scrutinise the operation by the NDA or whoever and they would advise the Government. Did that strike you as a strange dichotomy?

  Dr Williams: I think it depends on exactly what is meant by scrutiny and the level of detail in which the committee would look at the work done by other players. Certainly we can see that CoRWM would look closely and critically at the work of other people. They would expect the organisations involved to explain themselves and present their findings to CoRWM and that is what we would expect in terms of scrutiny. Based on that activity, we would expect CoRWM to advise the Government on whether the programme was proceeding in a satisfactory manner or whether there were issues which needed to be addressed.

  Lord Jenkin of Roding: Last time there was some assumption that advice included advice back to the NDA and others because it was scrutinising and advising. I think Members of the Select Committee saw some difficulty in that; if it is scrutinising downwards and advising upwards, that may seem to be a more realistic way of proceeding with it, but it was completely new to me until the Minister said so.

  Lord Tombs: I think perhaps we have some concerns that the number of advisory bodies reporting directly to Government, including Scottish Government, make it somewhat excessive and places a huge load on somebody somewhere in Government trying to reconcile them.

  Q208  Lord Colwyn: I wonder if you could help us clarify the role of the Environment Agency as regulator with regard to the work of the Nuclear Decommissioning Authority? Are you satisfied that the NDA is making best use of scientific advice in developing the site screening criteria which will feed into that government consultation?

  Dr McHugh: My Lord Chairman, if we could take those two questions separately and I can deal with the first one, which is the role of us in regulating the work of the NDA, and my colleague, Clive Williams, could advise on the scientific advice. We regulate the NDA's contractors rather than the NDA itself. For example, in relation to the existing nuclear sites, the nuclear site licensee companies, such as British Nuclear Group Sellafield Limited, Magnox Electric, the UKAEA, we regulate those organisations directly and we do not regulate the NDA. We have a working relationship with the NDA which is underpinned through a memorandum of understanding and we are a statutory consultee to the NDA under the terms of the Energy Act. We can provide a copy of the memorandum of understanding with NDA if you would find it helpful. There is a senior regulators forum that NDA chairs which brings all of the relevant regulators together so there is a mechanism there for co-ordination. The distinction I would draw is the NDA's role should be strategic saying what should be done in the timescale and the funding, and the operational work should be done by the NDA's contractors, how it is done, for example. The site licensee company, the contractor to the NDA, in our eyes is accountable for compliance with the law. In the context of a future repository, when the NDA has an implementing contractor we would expect the NDA's contractor to be responsible for developing the environmental safety case which would support an application for an authorisation. We have been discussing with the NDA the work that we will undertake with the NDA in terms of regulating and scrutinising, the term that we mentioned before, the ongoing repository development work following on from Nirex's work to date. Nirex will be moving into the NDA and the NDA will be establishing an implementation contractor. We expect to underpin that arrangement with a formal agreement with the NDA, which would be a legal agreement, under section 37 of the Environment Act. That is how we see the system working.

  Q209  Lord Colwyn: Perhaps I could come to the second part of the question and ask you whether there are any other technical issues that should be included in the government consultation. Are you satisfied with the NDA making best use of its scientific advice as a partner?

  Dr Williams: This is work in progress. We are aware that it is being addressed during development of the Government's consultation paper and we, the Environment Agency, understand that the NDA has access to the advice that is currently available from Nirex and its contractors, in particular the British Geological Survey, in developing the site screening criteria relating to geological settings. From our point of view, as environmental regulator, we feel there is a need to combine geological expertise with the distinct but complementary expertise that is needed to develop an environmental safety case for a repository and ensure how that can be made. We do have our own experts who will review the screening proposals, we expect to do that through our participation in the Managing Radioactive Waste Safely Implementation Planning Group, so we would have that reviewing role, reviewing the proposals that are made. We would also expect that the learned bodies would be given the opportunity to review the proposals as well and what we envisage is that the screening criteria initially will describe alternative geological environments in the UK. They will be set out in those terms rather than simple numerical criteria, such as rock permeability, so that is how we see it working out at the moment.

  Q210  Lord Colwyn: Perhaps I could continue. In your written evidence you say that you will: "continue to scrutinise the scientific and technical work that the NDA will now undertake following its acquisition of Nirex's skills and technology and review the NDA's management systems and changes during its creation of an implementation contractor". Without a regulatory remit over the NDA and without a contractor currently in place, what form will this scrutiny take?

  Dr Williams: I think the route for achieving that is really what my colleague, Dr McHugh, has mentioned, that is to say there is a power that we have under the Environment Act. We, the Environment Agency, have a power to enter into agreements with other bodies for the purpose of providing advice and assistance to them and for recovering our costs of doing so. That is a statutory provision and it is something that can be made to work in an open and transparent way. We do have such an agreement already in place with Nirex.

  Q211  Lord Tombs: Nirex has a role in setting technical standards for waste conditioning. Technical assessments to ensure compliance with Nirex specifications form part of the regulatory process, such as the Nirex "Letter of Compliance". With the integration of Nirex into the NDA, to whom will regulators refer for the setting of technical standards for waste conditioning under the geological disposal programme?

  Dr McHugh: We have our own expertise in radioactive waste conditioning and we have developed our own regulatory capacity since the time we last appeared before your Lordships, so we have set up an internal nuclear waste assessment team to scrutinise Nirex's work and our colleagues in Scotland, SEPA, have a similar team, so we feel that we have better arrangements than existed a few years ago to examine Nirex's work on the viability of the phased geological repository concept; Nirex's research and development programme and the Letter of Compliance process. We have published a number of reports on those subjects which we could provide to the Committee if you wished. The individual packaging proposals that are made by the industry and the Letter of Compliance process used by Nirex are the means for the industry in getting advice on those proposals, but the safety case needs to be owned by the industry itself. So the process works that we advise the HSE's Nuclear Installations Inspectorate on whether a particular packaging proposal should be allowed to proceed and for the more difficult ones, the ones which involve, say, treating difficult waste from the Sellafield wet silos for example, we sample those and assess them ourselves. Those are all substantial changes we have made since we last appeared before the Committee. We see an expanding role for the regulators and we will be publishing some joint guidance with HSE and SEPA on how this process works. We have published some documents already, which we could let the Committee have, on advice and guidance to industry on how the process works. We consulted the industry before we issued that advice. We are also revising our guidance on requirements for the authorisation of a repository which was last published almost ten years ago. We are just about to go to tender for a revision of that document and next year we hope to have a revised version of that document for near surface facilities and deep facilities, so we have not relied on Nirex for our regulatory judgments. Indeed, we have constructively criticised and made recommendations to Nirex's proposals and technical work. We see Nirex as an adviser to the nuclear industry but not as a regulator, we are the regulators—we in HSE and SEPA—and we comment on Nirex's work and scrutinise it. Nirex has some unique intellectual property, it holds the intellectual property for the UK's phased geological repository. It is very important that is preserved while it is in the NDA and it has also got some specific technical expertise that needs to be maintained and enhanced and that is something we are discussing with the NDA.

  Q212  Lord Tombs: I am a little troubled by this branch you described. Is it scientifically well staffed or does it rely on synthesising advice from other bodies?

  Dr McHugh: We have recruited people who usually have postgraduate degrees, for example in radioactive waste conditioning or geology. It is a relatively small team, I will admit. We do not intend to supplement the whole of Nirex's advice, but we do have sufficient expertise there to scrutinise it in a very thorough and technically robust way.

  Q213  Lord Tombs: So it is a scrutiny body not an originating body?

  Dr McHugh: Yes, that is right.

  Q214  Lord Tombs: Is it largely scientifically staffed?

  Dr McHugh: It is scientifically staffed.

  Q215  Lord Tombs: Permanently or subject to active movements?

  Dr McHugh: That is right, we have a permanent team established in our northern office, yes.

  Dr Williams: I was going to add, in addition to waste packaging proposals for intermediate level waste, for example, that team has been scrutinising the safety case for the operational, lower level waste repository near Drigg, so it has a very important and current regulatory role for us.

  Q216  Lord Tombs: So do the NDA of course, so you get advice from the NDA, I take it. Do you see any conflict in the fact that the producer of waste, the NDA, now incorporates Nirex which, as the organisation for setting standards for waste, has the experience in that area?

  Dr McHugh: It is not a situation we would like to be very prolonged. We would like the NDA to move to arrangements where it has an implementation contractor as soon as it reasonably can. We have been in discussion with the NDA over where the location of that body is within the NDA to ensure that there is separation between the operational parts of the NDA, if I can call it that, and the parts which would set waste standards or advise on waste packaging, so we have been pressing the NDA to quickly set up the new arrangements as soon as it can.

  Q217  Lord Tombs: What do you see as the future for Nirex then?

  Dr McHugh: I see the parts of Nirex which are in the NDA as being the implementer in waiting for the repository.

  Q218  Lord Tombs: You see its role changing really to an NDA role?

  Dr McHugh: To an NDA role, yes.

  Q219  Lord Tombs: That is currently being filled by your own branch?

  Dr McHugh: To an extent. I think there was a gap there previously over who would regulate and scrutinise Nirex and our new arrangements go some way to filling that gap.