The Department for Business, Energy and Industrial Strategy (BEIS) is taking the opportunity to consult on rationalising the regulatory arrangements that apply to nuclear sites in the final stages of their decommissioning and clean up1. Responses are required by 3rd July 2018.
Under the Nuclear Installations Act 1965 (as amended) (NIA65) licensees of nuclear sites are liable for damage to third parties due to a nuclear incident arising from their activity. Through a combination of liability caps, insurance and a UK Government back stop, licensees manage that potential liability.
Currently that liability remains in place until the Office for Nuclear Regulation (ONR) notifies the licensee that the site has been cleaned up to an extent that it is suitable for any reasonably foreseeable future use – the “no danger” criterion. This usually happens roughly in tandem with the point the environmental regulator in the relevant jurisdiction2 considers that the site no longer poses a danger in respect of radiation from disposal of radioactive wastes. In short, right at the end of the entire decommissioning and demolition process.
In the nuclear decommissioning context – whether of a power station or a treatment, storage or disposal facility - virtually all lightly contaminated foundations and sub-structures from a site must be removed and transported elsewhere for disposal before the “no danger” standard is met and third party nuclear liability falls away. That degree of removal and transport is not necessarily required in order to meet the disposal related requirements of the Radioactive Substance Regulations (RSR) permit issued by the relevant environmental regulator.
BEIS propose that the “no danger” criterion remains as an option but that licensees can apply to ONR for exclusion from the nuclear third party liability regime at a much earlier stage, provided clear and objective conditions have been met.
These conditions, formulated by the OECD Steering Committee for Nuclear Energy, are that:
- The operations at the decommissioned installations have permanently ceased;
- Nuclear material/waste must have been removed or decayed to specified levels3;
- The annual effective dose to an offsite member of the public must not exceed 1 millisievert;
- The installation must remain under the control of the relevant national authorities
- Provisions for containment and control of the remaining radioactivity must be in place.
BEIS propose that low level nuclear waste facilities which meet internationally agreed requirements (primarily doses less than in bullet point 3 above) should be excluded from the third party nuclear liability regime altogether.
To harmonise arrangements in respect of certain disposal facilities, BEIS want to clear up an anomaly. Nuclear waste disposal, as opposed to storage, facilities do not in themselves require a nuclear site licence and so can be constructed outside of a nuclear site. Such facilities are regulated by the relevant environmental regulator. Once the Nuclear Installations (Liability for Damage) Order 2016 comes into force (projected to be this summer) the third party nuclear liability regime will apply to those off-site facilities too, until such time as the relevant environmental regulator is satisfied that there is no further danger from ionising radiation. However, if constructed on a nuclear licensed site, the nuclear site licence obligations will attach to that disposal facility. That includes ONR regulation and the “no danger” criterion”, in addition to the environmental agency regulation.
BEIS proposes that operators of a disposal facility (defined as an engineered facility for the disposal of nuclear waste) on a nuclear site, will be able to apply for the nuclear site licence to be dis-applied to that facility when the OECD is satisfied no licensable activities are being carried at that facility. The environmental regulator, not ONR, will then manage the regulatory regime as if that facility were off-site and determine when the facility no longer poses a danger. Government has confirmed that the proposed deep level, long-term geological disposal facility for ILW and HLW will expressly be required to have a nuclear site licence. So in practice, this proposal applies to disposal sites for low level radioactive waste, but not waste which has such a low level of radioactivity that it is to be excluded, under the BEIS proposals, from the third party nuclear liability regime altogether. The risk of these sites triggering third party liability seems reasonably remote but BEIS has quite properly sought to remove any loopholes in the liability regime.
The new regime would affect the proposed decommissioning of NDA sites, the current EDF nuclear fleet and, looking much further ahead, decommissioning of the new build nuclear fleet.
The NIA65 would be amended to:
- include the option for third party nuclear liability to cease when the OECD standards are met and the licensee can then apply to surrender its nuclear site licence;
- exclude very low level waste disposal facilities from the third party nuclear liability regime;
- potentially apply the regulatory regime applicable to off-site disposal facilities to such facilities on a nuclear site.
- The new standards would allow lightly contaminated infrastructure to remain on site and be disposed of there, in accordance with the requirements of the relevant environmental regulator. The current parallel regulatory regimes of ONR and the environmental regulator will cease at the point the OECD standards are met. ONR will bow out.
- To the extent a nuclear disposal facility is on-site but it is agreed by ONR that it can be taken outside the purview of the nuclear licence, only the relevant environmental regulator and HSE will oversee the facility.
- At that point the site is akin to an industrial site that requires some disposal of low level radioactive wastes. The relevant environmental regulator will continue to carry out its regulatory oversight under the Radioactive Substances Regulations permit, until such time as there is no remaining danger from the effects of ionising radiation. Commercial re-development of land while a nuclear site licence is in force is, practically, a non-runner. That is not necessarily the case where a RSR permit is still in place. Enabling a nuclear site licence to be surrendered at an earlier stage than is currently the case, opens up the possibility of earlier re-development of a site.
- Operators will have greater flexibility as to how they remediate their nuclear sites. BEIS provide case studies of how current decommissioning activity at Trawsfynydd, Winfrith and Dounreay might change, (and become cheaper), if the new proposals are brought into law. For example reductions in the amount of spoil removal and void filling).
- Removing incentives to create disposal sites way from nuclear licences sites will reduce transport of contaminated material and cost of disposal.
- Earlier transition out of the nuclear third party liability regime may provide scope for operators to reduce contingent liabilities on their balance sheets and insurance costs.