Government Senators' Report

Government Senators' Report

Introduction

1.1       The Commonwealth Radioactive Waste Management Bill 2005 and the Commonwealth Radioactive Waste Management (Related Amendments) Bill 2005 were introduced in the House of Representatives on 13 October 2005, and passed on 2 November with 12 amendments. The bills were introduced into the Senate on 7 November 2005.

1.2       On 9 November 2005, the Senate referred the bills to the committee for inquiry and report by 28 November 2005.

Conduct of the Inquiry

1.3       Notice of the inquiry was posted on the committee's website. The committee secretariat also contacted a range of individuals and organisations nominated by committee members, in order to notify them of the inquiry and seek submissions. The committee received 233 submissions. A list of those who made submissions is at Appendix 1.

1.4       The committee conducted a public hearing in Canberra on Tuesday 22 November 2005. A list of the witnesses who gave evidence is at Appendix 2.

1.5       The committee thanks all those who contributed to the inquiry.

Overview

1.6       These bills clear the way for the Commonwealth to establish a radioactive waste management facility. This facility is required to manage the Commonwealth's radioactive waste, which is currently stored at 30 different locations around the country.

1.7       As a result of a continued and apparently irresolvable lack of co-operation from the states and territories, the Government has been forced to abandon a long-standing proposal to build a national repository for all radioactive waste in the country. This waste is currently stored at over 100 locations, including in hospital basements in major capital cities and at universities. The state and territory Governments will need to make their own arrangements to dispose of this waste.

1.8       The facility that these bills will enable to proceed will store or dispose of low and intermediate level waste resulting from the medical, industrial and research use of radioactive materials by Commonwealth agencies.[1]

Commonwealth Radioactive Waste Management Bill 2005

1.9       The purpose of this bill is to ensure that the Commonwealth has power to do all things necessary for the selection of a site for and the establishment of a radioactive waste management facility, and to transport radioactive material to a site.

1.10      The bill specifies three sites which are to undergo further site investigations. All sites are on Commonwealth-owned Department of Defence properties. They are:

1.11      The bill also provides for a process to allow for the nomination of further sites by the Chief Minister of the Northern Territory, or an Aboriginal Land Council. If such a site is nominated, the Commonwealth Minister may approve that site to undergo site investigations.

1.12      This is a brief bill, and the clauses are well explained in the Explanatory Memorandum. The features of the clauses in the bill are as follow:

Commonwealth Radioactive Waste Management (Related Amendment) Bill 2005

1.13      This bill provides that decisions of the Minister to approve nominated land, to declare land as a site for a facility, and to declare land to provide all-weather road access to a site, are not decisions to which the Administrative Decisions (Judicial Review) Act 1977 applies.

Radioactive waste in Australia

1.14      Radioactive waste is produced in Australia from a variety of activities. Radiopharmaceuticals are extensively used in nuclear medicine, for example in radiotherapy cancer treatment and bone scanning applications. The committee was advised that about half a million Australians receive a radiopharmaceutical every year, and that on average, every Australian will need a radioisotope at some stage during their lifetimes for medical treatment.[3] There are also many industrial and research applications such as silicon doping, bore hole logging, pollution monitoring, and quality control processes in industry.

1.15      Australia produces many of the products needed at HIFAR, Australia's nuclear research reactor at Lucas Heights, near Sydney. An inevitable product of the use of these nuclear technologies in Australia is the generation of waste. This waste ranges from the reactor components themselves, which become radioactive over time, to simple items such as gloves and clothing used by people handling radiopharmaceuticals. Over half of Australia's inventory consists of lightly contaminated soil, a result of Commonwealth Scientific and Industrial Research Organisation (CSIRO) research into processing radioactive ores during the 1950s and 1960s.[4]

1.16      The International Atomic Energy Agency (IAEA) divides nuclear waste into four categories:

1.17      Appendix 3 reproduces a table showing how the IAEA classifies waste.

1.18      According to the Department of Education, Science and Training (DEST), most of Australia’s radioactive waste consists of low level and short-lived intermediate level waste. Approximately 3,700 cubic metres of low level and short-lived intermediate level radioactive waste from over forty years of research, medical and industrial uses of radioactive materials have now accumulated.

1.19      Australia also holds approximately 500 cubic metres (equivalent to about 8 large shipping containers)[5] of long-lived intermediate level radioactive waste. This includes waste from the production of radiopharmaceuticals, wastes from mineral sands processing, and used sources from medical, research and industrial equipment. Australian does not have and does not generate any high level waste. Appendix 4 shows Australia's current and expected future radioactive waste holdings.[6]

1.20      By international standards, Australia produces small amounts of radioactive waste. The CEO of ANSTO, Dr Cameron, advised the committee that in France, the Government has disposed of 651 000 cubic metres of waste similar to that Australia produces in its surface repositories; and the USA has transported and disposed of almost 4 million cubic metres of waste.[7]

1.21      The return of spent fuel rods from the HIFAR reactor, which are currently being reprocessed in France, will add approximately 132 cubic metres to Australia's inventory of intermediate long-lived waste. These rods have accumulated over the 40 years that HIFAR has operated. Dr Cameron noted that in comparison, France produces 930 cubic metres of intermediate level waste and 155 cubic metres of high level waste every year.[8]

1.22      The amount of low level and short-lived intermediate level waste that Australia produces every year is also low by international standards. Each year, Australia produces approximately 40 cubic metres of such radioactive waste – less than the volume of one shipping container. By comparison, Britain and France each produce around 25 000 cubic metres of low level waste annually.[9]

The search for a site

1.23      Radioactive waste is currently stored in a large number of locations around the country, including in hospital basements in large capital cities. The committee understands that there are storage facilities in all states and territories. These include low-level waste stores at Esk in Queensland, Woomera in South Australia and Mount Walton, in Western Australia.[10] In the Northern Territory, waste is stored at the Royal Darwin Hospital and at a facility near Katherine.[11] Used fuel rods from the HIFAR reactor are stored on-site at Lucas Heights. Commonwealth nuclear waste (as distinct from state government and other waste) is stored at 30 different locations.

1.24      While this waste is currently considered to be stored safely, the storage of waste in this way has long been recognised by state and Commonwealth Governments as sub-optimal and not world's best practice.

1.25      The search for a suitable site for a waste management repository has been going on for many years. DEST representatives advised the committee that it commenced in 1979, when the states and territories approached the Commonwealth to set up a Commonwealth-State group to look at the siting and establishment of facilities. That process failed in the 1980s.[12] The process was recommenced in 1992, but even then, difficulties were apparent. As the then Minister noted in a media release:

I have sought the co-operation of the states. The response has been disappointing, and the Commonwealth will have to identify, and may need to acquire, a site if co-operation is not forthcoming.[13]

1.26      Nonetheless, the process commenced in 1992 proceeded. Criteria for selecting a site were established and listed in a discussion paper issued by the Government, A Radioactive Waste Repository for Australia: Methods for Choosing the Right Site (1992). The paper noted that:

A suitable repository site must have long-term stability and attributes that will enable the wastes to be isolated so that there is no unacceptable risk to people or the environment either while it is operating or after the site has closed. Criteria for site selection include natural physical characteristics as well as socioeconomic, ecological and land-use factors.[14]

1.27      The primary criteria for site selection identified in the paper were as follows:

1.28      Following an extensive and scientific selection process, eight regions were identified as being likely to contain suitable sites for a repository. On 15 November 2000, the South Australian Parliament passed a bill prohibiting the establishment of a storage facility in South Australia. On 24 January 2001, the Government announced that a site known as Evett's Field West, north-west of Woomera in South Australia, was to be the site for a repository for low-level and short-lived intermediate level radioactive waste.

1.29      The Commonwealth Government subsequently announced, on 8 February 2001, that 'given the lack of unanimity among states and territories about the desirability of a national store for all of Australia's intermediate-level radioactive waste', it would establish a storage facility on Commonwealth land for intermediate level waste produced by Commonwealth agencies.[16]

1.30      In May 2003, following controversy about the Evett's Field West site, the Government announced that site 40a on a pastoral property in South Australia would be the location of the repository, which was to take low-level waste only. The Minister for Science indicated that the intermediate-level waste site store would not be sited in South Australia. Both the Governments of the Northern Territory and Western Australia reacted, indicating that they would oppose any moves to site such a facility in their states.

1.31      Site 40a was South Australian Crown land, and the Commonwealth sought to acquire it. The South Australian Government sought to pre-empt this decision by declaring the site a national park. The Commonwealth was subsequently successful in acquiring the land, but action in the Federal Court followed, ultimately culminating in a ruling on 24 June 2004 setting aside the compulsory acquisition of the land.[17]

1.32      On 14 July 2005, the Government announced that it was abandoning the repository project and issued a media release announcing the decision to examine the three sites in the Northern Territory. In issuing this media release, the Minister for Education, Science and Training (the Hon Dr Brendan Nelson MP) noted that:

This decision followed the failure of the states and territories to cooperate with the Australian Government in finding a national solution for the safe and secure disposal of low level radioactive waste. The South Australian Government’s opposition to the national repository near Woomera ended a bipartisan approach to radioactive waste management that had existed for more than a decade under both Labor and Coalition Federal Governments.[18]

The requirement to over-ride Territory and other laws

1.33      The Northern Territory Government and a number of other submissions protested strongly at the Commonwealth's decision to include in the bills provisions that over-ride existing and future Territory laws. The Chief Minister, the Hon. Clare Martin MLA told the Committee that:

It deliberately rides roughshod over the concerns of Territorians and strikes down the laws made by its democratically elected representatives. Any bill which had a similar impact on the rights of state citizens or on state laws would never be contemplated.[19]

1.34      The Central Land Council (CLC) also expressed concern about laws being over-ridden by the Bill:

More specifically, the legislation has the effect of over-riding native title, environmental and heritage considerations, considerations that are of particular relevance given the importance of the Mt Everard and Harts Range/Alcoota sites to Aboriginal people. In addition, traditional landowners will also be unable to protect any sacred sites or culturally important places because the Northern Territory Aboriginal Sacred Sites Act will have no effect.[20]

1.35      The Department of Education, Science and Training explained that it was necessary to include these provisions because the states and territories had made it clear that they would do everything possible to frustrate the Commonwealth's intentions:

Specific legislation to enable the Commonwealth to responsibly and effectively manage the waste is needed because State and Territory jurisdictions, including the Northern Territory, have introduced specific laws purporting to prohibit the establishment of a radioactive waste management facility and the transportation of radioactive material to such a facility. Further, the Northern Territory Government has made it clear it will do everything possible to halt or frustrate the Commonwealth’s actions.[21]

1.36      The Committee notes that the Northern Territory's Nuclear Waste Transport, Storage and Disposal (Prohibition) Act 2004 (NT Act) was enacted with the specific intention of preventing the Commonwealth from establishing a radioactive waste management facility in the Northern Territory (NT).

Views of Land Councils

1.37      The Central Land Council (CLC) submitted that traditional landowners of both the Alcoota/Harts Range and Mt Everard sites are strongly opposed to the Commonwealth radioactive waste management facility being located at either site or on any part of their country, and had instructed the CLC to assist them to oppose such a facility from proceeding.

1.38      The Northern Land Council (NLC) was more conciliatory. NLC representatives acknowledged that there is a need for the Commonwealth to acquire land for long-term, safe and secure waste storage. The NLC expressed opposition to the NT Act, stating that it had been enacted without consultation or their consent:

This was the case notwithstanding that the Act prevents traditional owners from developing their country for a waste facility should they wish.[22]

1.39      The NLC appears to accept that a facility can be built and operated safely. Representatives advised the committee that they had sought an amendment to the bill allowing a Land Council to volunteer a site, if traditional owners consent and provided that sacred site and environmental issues are resolved, and native title is not extinguished unless by consent.[23]

1.40      The NLC noted that an amendment had been introduced implementing most of the changes sought, although representatives considered that further changes were required so that the Chief Minister, by nominating a site, could not over-ride various rights of veto and to rights to negotiate, or over-ride procedural protection provisions.[24]

1.41      It is clear that the NLC's support for the legislation is conditional on traditional owners retaining a final veto right concerning the location of a waste facility on the basis of sacred site and environmental considerations. The bill in its current form does not appear to meet this requirement.

1.42      In its submission, DEST notes that there have been a number of publicly threatened actions by the Northern Territory Government and others to delay, prevent or obstruct the Commonwealth's activities.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the Environment Protection and Biodiversity Conservation Act 1999 will not apply to the site investigation phase of the project. The Government considers that these Acts, were they not disapplied, would offer an opportunity for persons to unreasonably interfere with the site selection process.[25]

Suitability of the sites selected

1.43      A number of submissions and several of those who gave evidence questioned the suitability of the three sites selected. Submissions from Katherine community groups particularly questioned the suitability of the Fisher's Ridge site, pointing out the area receives some of the highest rainfall in the country, is composed of unstable limestone country with numerous sinkholes which can open up unexpectedly, and overlies a major aquifer, the Tindal Aquifer.[26]

1.44      Katherine community groups also pointed to extensive horticultural developments not far from the proposed site, and expressed concern about the possible effects of the facility on the developing tourism industry.

1.45      Several submissions argued that the site selection criteria appeared to have been set aside, and that there was no scientific basis to the selections made.

1.46      It was suggested to the committee that Lucas Heights should continue to be the site for storing the waste, and that the repository should be located there. This would require an amendment to the ANSTO Act. The CEO of ANSTO, Dr Cameron, acknowledged that ANSTO had safely stored the wastes generated by HIFAR for many years, and has the capacity to continue to do so. However, he said that on siting criteria for a repository, 'Lucas Heights would not score highly on those'.[27]

1.47      The committee sought information from DEST representatives about the way the three sites were selected. Representatives advised that the selection process was carried out by officials, predominantly from the Department of Defence:

The department looked at the sites for their suitability according to these criteria in a general sense, but we were also provided with information on sites by the Department of Defence. We had very broad criteria that did not require a high-level technical committee. Criteria were applied such as proximity to infrastructure, proximity to population centres where you might get some infrastructure support for the facilities, Defence’s plans for the future use of the site, and likely growth constraints on sites. Defence’s operating requirements were also important.[28]

1.48      The committee notes that the nomination of the three sites in the bill will not preclude a closer examination of the suitability of the sites against the previous selection criteria, and after site selection, a long regulatory process will commence, starting with the assessment of the site under the Environment Protection and Biodiversity Conservation Act.

1.49      Further, the licensing processes under the Australian Radiation Protection and nuclear Safety (ARPANS) Act are rigorous, and the committee is confident that the several stages of scrutiny by ARPANSA that the selected site will be required to pass will ensure that high standards for the longer-term safety of the site are maintained.

Safeguards

1.50      From the many submissions sent to the committee, it is clear that there is considerable concern, at least in parts of the community, about whether radioactive material can be safely stored in the longer term. For many people, this is a highly emotive issue. Some submissions showed a deep seated suspicion of all things nuclear, and appeared to be assuming that the materials concerned could not or would not be handled safely, or stored without any ongoing risk to human health or environmental contamination. For example, the ACF submitted that:

There is a significant and unnecessary risk to the health, safety and rights of communities across Australia from ANSTO's current and proposed reactor operations and waste production at Lucas Heights and the proposed nuclear waste transport to, and imposition of, a nuclear dump in the NT.[29]

1.51      It is indisputable that if handled incorrectly, radioactive materials can pose a risk to human health. This risk rises in proportion to the level of radioactivity of the material and the dose received. The committee therefore sought information from the organisation responsible for the monitoring of the safe handling of nuclear materials in Australia, the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA), about the safety of the proposal and safeguards that will be put in place to ensure the safety of any persons living in the vicinity of the proposed facility, or along transport routes that will be used to transport the waste to the facility.

1.52      The committee asked the CEO of ARPANSA, Dr Loy, about whether he was confident that it is possible to build and engineer a facility to the level of safety that is required under modern best practice safety standards. Dr Loy responded that he considered that this was the case.[30]

1.53      Dr Loy explained that ARPANSA's role commenced after the site had been selected. As a radioactive waste repository is a 'controlled facility' under the ARPANS Act, all stages of the design, construction and operation of the site would come under ARPANSA's licencing requirements, and cannot proceed unless stringent safety requirements are met. Dr Loy explained:

In making a decision as to whether to issue any such facility licence, the CEO of ARPANSA is required to take into account, amongst other things: international best practice in relation to radiation protection and nuclear safety; whether the proposed conduct can be carried out without undue risk to the health and safety of people and to the environment; whether the applicant has shown that there is a net benefit from the conduct; whether the applicant has shown that the radiation doses arising are as low as is reasonably achievable, having regard to economic and social factors; whether the applicant has shown a capacity to comply with the licence; and, if the application is for a nuclear installation, the content of any submissions made by members of the public. The application or applications would thus be subject to close scrutiny and would need to demonstrate the safety of the facility...

...This guidance will draw upon high-level, current international guidance that represents international best practice in radiation protection and nuclear safety for such facilities.[31]

1.54      Dr Loy explained that the acceptable doses that would be allowed for members of the public or workers at the facility would be very low:

...you are looking to see that, during the operation of the repository, the public and the workers receive no more radiation dose from the operations of the repository than they would from any other facility that uses radioactive material. There are well-known dose limits and dose constraints, as they are called in the trade, set down in the international literature to ensure that only very small doses can be received by the public and the workers in the operation of a repository.

...the applicant needs to demonstrate that the arrangements it has in a repository are sufficient to limit the doses to operators and the public during the operation of the repository and that, when it is closed and in the long term, the risks arising from accidental exposure are very small.[32]

1.55      ARPANSA's licencing procedures are also subject to both public comment and international peer review. Dr Loy explained that once an application for a licence is received (to build or operate), ARPANSA calls for public submissions. He explained the process:

Once the application is received, I publish it...and I call for public submissions. In the meantime, I usually arrange for an international peer review of the application...that is, I get people of expertise from around the world to come and review the application and provide a report, which I publish so that it is available to people. I have my advisory committees. I mentioned the council, but also there is the Nuclear Safety Committee and the Radiation Health Committee, whom I will ask to look at various aspects of the proposal, and I publish their reports. So a lot of information is available to people. The public applications are received and published, and then we would move to a public forum, at which, as I said, the public submitters would state their case, as would the proponent, and be questioned by a panel that I usually make up of me, an international expert and a person who comes from a background that is perhaps more inherently sceptical of the proposal than they might otherwise be. So there is a testing. The reports of the panellists are published and the transcript is published. A lot of information is put out there and there is plenty of opportunity for people to put forward their views. As I said, I must take them into account. In making my decision, I have to explain how I took them into account.[33]

1.56      The committee also sought Dr Loy's views about whether the materials could be transported safely to the site. He advised that the safe transport of materials was an issue that the radiation protection community regarded as 'pretty much solved', and that the transportation of these materials had a good safety record:

Again, a lot of work over the years has gone into looking at the containers that you use for the transport of different forms of radioactive material. A lot of transport goes on of different kinds of material and it is generally regarded as meeting good safety requirements with a good safety record.[34]

Urgency of identifying a site

1.57      A number of submissions criticised the apparent haste with which the Government was proceeding with this proposal. It was suggested that there were several years available yet before a site had to be chosen, which would allow for more extensive community consultation and a more rigorous process of site selection.

1.58      DEST representatives responded that the establishment of the facility was now considered urgent:

I think the government probably considered that it had a deadline with fuel arriving in 2011. As I have shown, we have an extensive regulatory process to get through before then and we have less than six years to do it. That may have determined the government’s course of action.

...

There are two considerations. The one we are most concerned with, as the provider of the facility, is that that facility is available when that reprocessed spent fuel will return to Australia in 2011. As I have indicated, we have six regulatory stages to go through. One of them alone can take up to two years, so we do not have too much time.[35]

Public Consultation

1.59      A number of submissions and witnesses were also critical of an apparent lack of consultation in relation to the decision to select three sites in the NT.

1.60      The Chief Minister, for example, told the committee that the first she had heard of the current proposal was the media release from the Minister, Dr Nelson, on 15 July 2005.

1.61      Similarly, the Alice Springs Town Council had little information about the proposal. Alderman van Haaren told the Committee:

Alice Springs Town Council have really been catapulted into providing reponses in the community very much still on innuendo and rumour. We do not have any facts and we have not been briefed...[36]

1.62      Others disagreed. The representative of the Minerals Council, for example, told the committee that the Council was happy with the advice received so far, but like most Territorians, was seeking further information. The representative told the committee that 'there has been a lot of misinformation circulating in the community'.[37] Similarly, the representatives of the NLC appeared to be not only reasonably well informed about the nature of the proposal, but were taking active steps to add to this information.

Conclusions and recommendation

1.63      The committee recognises that the process of selecting a site for the establishment of a nuclear waste disposal and storage facility which is enabled by these bills is not the usual way of proceeding.

1.64      However, in the face of continued refusal on the part of the states and territories to host such a facility, and despite widespread acknowledgement that such a facility is needed, no other course of action appears to be now open to the Government. The regulatory processes associated with commissioning a disposal facility will be inevitably time consuming and must be completed before reprocessed HIFAR fuel rods are returned from France in 2011.

1.65      Australia needs a radioactive waste repository. Even the Chief Minister of the Northern Territory acknowledged this requirement:

The Northern Territory government recognises and acknowledges the benefits that follow to the Australian community by what is produced by that organisation [ANSTO] and the research they do. The Territory government recognises the benefits that flow from radiopharmaceutical medical procedures and the variety of industrial, scientific and domestic applications that use radioactive materials. We are on the public record as acknowledging the need for safe and secure disposal of residual waste material.[38]

1.66      The committee calls on the States to urgently reconsider their positions in relation to the establishment of a single, purpose-built and secure repository. It is long past time to set aside the not-in-my-backyard syndrome which has characterised this debate. At the same time, the committee calls on DEST to be more pro-active in adequately informing community groups about the proposal. A considerable proportion of the opposition to this project appears to be based on misconceptions and ignorance. These must be dispelled if the project is to gain widespread community acceptance.

Recommendation

The committee recommends that the bills be passed.

Senator Judith Troeth

Chair

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