Radioactive Waste Management in A World of Conflicting Expert Opinion and Regulation - A Legal Perspective

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The 16
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Residential Summer School on Radioactive Waste Management and Decommissioning
Christ College, Cambridge, United Kingdom 3 7 July 2000 {12347/AD/AD0256:1}
Radioactive Waste Management Decision Making in a World
of Conflicting Expert Opinion and Regulation
A Legal Perspective
by Arnold Dix, Lawyer & Scientist,
Maddock Lonie & Chisholm, Lawyers, Australia
Arnold.dix@maddocks.com.au
THE 16
TH
RESIDENTIAL SUMMER SCHOOL ON RADIOACTIVE
WASTE MANAGEMENT AND DECOMMISSIONING
CHRIST COLLEGE CAMBRIDGE, UNITED KINGDOM
3 -7 July 2000
INDEX
1. INTRODUCTION............................................................................................. 2
2. THE LAW AN INTERNATIONAL OVERVIEW........................................ 2
2.1 Hindsight................................................................................................... 3
2.2 The Role of International Standards ....................................................... 3
2.3 Peers Review............................................................................................. 4
2.4 Documents as Evidence of Knowledge..................................................... 5
2.5 Criminal Liability..................................................................................... 6
2.6 Managing Professional Standing ............................................................. 6
2.7 Personal Conduct before an Inquiry........................................................ 7
3. THE IONISING RADIATION INDUSTRY PERSPECTIVE ON LEGAL
RISK................................................................................................................... 7
4. UNCERTAINTY ............................................................................................... 8
4.1 Project Uncertainty International Examples........................................ 8
4.2 International Practice Uncertainty Examples ...................................... 9
(a) Example 1 - NORMS....................................................................... 9
(b) Example 2 Protection of the Environment................................. 10
(c) Example 3 Reprocessing Spent Fuel .......................................... 12
(d) Example 4 - Long Term Storage ................................................... 13
4.3 Complexity in the Regulatory Environment.......................................... 13
4.4 A Practical Example Deferred Decommissioning............................... 16
5. DEFERRED DECOMMISSIONING............................................................. 16
5.1 Discounting ............................................................................................. 16
5.2 Other Factors.......................................................................................... 18
6. HYPOTHETICAL........................................................................................... 19
6.1 A Deferred Decommissioning Scenario ................................................. 19
6.2 Sample Court Examination.................................................................... 21
7. CONCLUSION................................................................................................ 26
Radioactive Waste Management Decision Making in a World of Conflicting Expert Opinion and Regulation A Legal
Perspective by Arnold Dix, Lawyer & Scientist, Maddock Lonie & Chisholm, Lawyers, Australia
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Radioactive Waste Management Decision Making in a World
of Conflicting Expert Opinion and Regulation
A Legal Perspective
by Arnold Dix, Lawyer & Scientist,
Maddock Lonie & Chisholm, Lawyers, Australia
THE 16
TH
RESIDENTIAL SUMMER SCHOOL ON RADIOACTIVE
WASTE MANAGEMENT AND DECOMMISSIONING
CHRIST COLLEGE CAMBRIDGE, UNITED KINGDOM
3-7 July 2000
1. INTRODUCTION
The legal, political and social pressures on technically trained professionals
providing services for the nuclear waste management and nuclear facility
decommissioning are intense.
The last five years has witnessed an almost complete reversal in apparent western
government commitments to the industry with an almost universal halt to the
development of nuclear weapons, the scrapping of the introduction of many new
nuclear power stations, the abandonment of refurbishment plans for many existing
nuclear power facilities and the decommissioning of existing - and often fully
functional - nuclear power and fuel facilities.
This paper examines the broad principles underlying legal accountability of
technically trained professionals working in the industry such as engineers,
scientists and inspectors.
Because the summer school has participants from all parts of the world, this paper
focuses on universal trends and legal themes. This paper is no substitute for
specific legal advice.
2. THE LAW AN INTERNATIONAL OVERVIEW
Legal systems vary enormously from country to country. However there are
international trends and themes, which can provide a useful legal basis for all
professionals within the Radiation Sector to work. This is important because
many professionals provide their services to the world market.
When professional judgment is required, the standards that are applied in
reviewing that judgment are almost identical: globally. An examination of the
standards expected of technical professionals is useful.
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The essence of the expected standards of conduct in America are reflected in the
following case extract:
"That level or quality of service ordinarily provided by other normally
competent practitioners of good standing in that field, contemporaneously
providing similar services in the same locality and under the same
circumstances" (Paxton v County of Alamdea (1953) 119 C.A. 2d 393, 398,
259P.2d 934).
It is not a requirement that the services be perfect, as noted again in America:
"An engineer's service need not be perfect. Since the engineer, when
providing professional services, is using judgement gained from experience
and learning, and is usually providing those services in situations where a
certain amount of unknown or uncontrollable factors are common, some
level of error in those services is allowed." (City of Mounds View v
Walijarvi 263 N, W. 2d 420,424 (Minn (1978)).
When you hire an engineer you, "purchase service, not insurance," so you are not
justified in expecting perfection or infallibility, only, "reasonable care and
competence" (Gagne v Bertram 1934 43 C. 2d 481,275P. 2d 15).
Rightly, communities around the world demand that technical professionals keep
up-to-date, they possess and maintain a degree of learning and skill at a standard
appropriate for someone practising in their area. To do less than this, might not
only be unprofessional but in some circumstances it may constitute criminal
conduct.
2.1 Hindsight
It is generally accepted globally that:
"in this world there are few things that could not have been better
done if done with hindsight.
The advantages of hindsight include the benefit of having a sufficient
indication of which of many factors present are important and which
are unimportant The standard . to be expected of professional
man must be based on events as they occur and not in retrospect".
(Duchess of Argyll v Beuselinck (1972) 2 Lloyd's REP.172 at p185).
This reasoning forms an essential component in determining the
appropriateness of the conduct of a person providing advice in the Ionising
Radiation Industry. It is not necessary to "get it right" it is however
essential to be able to explain why you recommended or undertook a
particular course of action.
2.2 The Role of International Standards
International Standards are generalisations. Unless directed otherwise,
professionals should turn their minds to the individual circumstances they
confront with respect to radioactive waste management decisions. Even
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within a single country there may be good reason to vary the application of
a standard from project to project and perhaps theoretically at least, even
within the one nuclear facility because of the peculiarities of the risks which
arise.
However there is, and will always remain the presumption that standards are
very useful in determining what is appropriate.
This was noted in England by Tindle C.J. as follows:
". . . care must be taken in using old books or other information . . . in
this sense standards are more exacting today . . . it is not a question of
the Court requiring high standard because the profession has adopted
higher standards. It is a question of the Court applying the law which
by its content expects such reasonable standards as will meet the
circumstances of today, including modern conditions of business and
knowledge concerning them. However, now as formally, standards
and practices adopted by the profession to meet current circumstances
provided a sound guide to the Court in determining what is
reasonable". (1970 92W.N.(M.S.W. 29 P.74).
Simply following a standard is no defence to an allegation of inappropriate
decision making. It is the substance of the decision to follow a standard - the
reasoning involved which is critical NOT that you followed the standard. As
professionals you are expected to use your judgement not simply follow a
formula or standard.
However a decision NOT to follow a standard must be made carefully - and
not just for convenience. Document your decisions especially if you
choose to depart from a standard.
2.3 Peer Review
In South Africa the process of inquiry may focus on whether the act or
omission in question was unreasonable according to the legal convictions of
the community. Joubert v. Impala Platinum Ltd 1998(1) S.A. 463 (B.H.C.)
The fact that there has been loss, injury or death does not necessarily mean
that there has been a mistake.
When deciding if a professional has reached an appropriate level of
performance the evidence of other professionals is often considered.
A "bench approved" jury instruction in America provides:
"In performing professional services for a client, an [engineer] has a
duty to have that degree of learning and skill ordinarily possessed by
a reputable [engineer], practising in the same or similar locality and
under similar circumstances.
It is the [engineer's] further duty to use the care and skill ordinarily
used in like cases by reputable members of the [engineering]
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profession practising in the same or similar locality under similar
circumstances, and to use reasonable diligence and [the engineer's]
best judgement in the exercise of professional skill and in the
application of learning, in an effort to accomplish the purpose of
which [the engineer] was employed".
The role of the Court or Inquiry bears greatly upon the way in which a
professional person will have their decision tested. Under English Law an
"expert witness" could be called before a Court to:
" furnish the judge or jury with the necessary scientific criteria for
testing the accuracy of their conclusion so as to enable the judge or
jury to form their own independent judgement for the application of
these criteria to the facts proved in evidence." Davie v Edinburgh
Magistrates' (1953) S.C. 34 at P40
The issue of the state of knowledge at the time of interest is considered in
the case of Chin Keow v Government of Malaysia (1967) 1W.L.R. 813 at
P187 where it is said:
" . . . a 1960 case should not be viewed through 1964 spectacle".
This means the practices knowledge and standards of a profession as at the
time of decision or recommendation is the critical issue, not the standard at
the time of the investigation.
2.4 Documents as Evidence of Knowledge
Because hindsight isn't the test to determine the appropriateness of a
professional's action, all inquiries will focus upon the state of knowledge,
and appropriate standards at the time a decision was made.
This means in any inquiry evidence may be led from fellow professionals
about what was known, and practices at the time a decision was made.
This brings into focus the importance of conferences such as this and more
importantly the role to which the written record of this conference may be
put in 5, 10, 20 or even 50 years time.
The written documentation, which forms the subject of this conference, will
mark a point in time and space to which others embarking upon an inquiry
in the future could have reference.
There are also lists of attendees and their employers, which could
conceivably be used as evidence of who was made aware of what issues and
when. The forensic importance of this conference in future court cases,
public enquiries or investigations should not be underestimated.
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2.5 Criminal Liability
In some circumstances the nature of the error may result in more than a
financial loss. The imposition of criminal penalties for technical experts has
been an established practice internationally for a long time.
The code of Hammurabi (1752 B.C.) imposed the death penalty on a
Babalonian Builder responsible for constructing a house that collapsed and
killed its residents. (Driver G.R. and Miles, J.C. the Babylonian laws,
VOL.1 (1952), P426.)
In circumstances where there is such gross carelessness and reckless
disregard for the dangerous consequences of an action, a professional may
be investigated with a view to proceeding with criminal proceedings.
" . . . the accused must be shown to have . . . creat[ed] an appreciable
risk of really serious bodily injury to another or others and
nevertheless he chose to run the risk". (R.B. Holzer [1968] B.R. 481
& 482).
The combination of both chemically reactive and ionising materials
associated with nuclear waste management and decommissioning raises the
prospect of criminal proceedings being brought.
This type of very serious criminal investigation is often in addition to other
actions in which commercial damages are pursued. It is criminal
prosecution, which will almost certainly destroy a professional's reputation,
and bring into question the reputation of their employer.
2.6 Managing Professional Standing
As a professional you should maintain an on-going interest in the subject
area of your discipline and document your advice and decision making
process. From time to time attend conferences or alternatively obtain the
proceedings. At the very least, talk to other professionals internationally
and read pertinent literature on current issues.
Our global understanding of the issues surrounding remediation of nuclear
waste improves daily. New technologies and techniques are emerging to
address old problems and inevitably they will create new ones.
Employers and politicians in the community place great faith in our ability
to skilfully manage their resources and safety, while at the same time are
highly suspicious of the nuclear industry in general.
The community's faith in professional skills must be honoured by providing
advice and acting in a way which is informed, responsive, skilled and
appropriate in all the circumstances.
Ensuring you can demonstrate that you have provided professional advice
and decision making services, is your best defence before any investigative
inquiry.
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The ever expanding stockpiles of medium and high level radioactive wastes,
coupled with the world's desire to decommission power stations and not
reprocess fuel, creates a myriad of issues for professional radiation industry
advisors. It is perhaps ironic that the social forces promoting
decommissioning are also likely to be the most critical voices in the debate
over how to safely dispose of the materials over the long term.
2.7 Conduct before an Inquiry
Always seek independent advice before you give evidence. There are some
general rules about presentation.
There is a fundamental difference between appearing before a judicial
process and a "public inquiry".
In the case of a judicial process the likelihood is that legal principles will be
followed, natural justice will be accorded and there will be a degree of
procedural fairness. The legal consequences of this are beyond the scope of
this paper.
On the other hand should a public inquiry occur not only may the rules be
less formal but the inquiry may be far more unpredictable.
In all circumstances you must remember that you are a professional. Your
aim is to persuade your audience that your action (or inaction) was
appropriate in all the circumstances. While is it not appropriate in this
document to advise you on techniques that can be used to achieve this end,
the underlying and indeed most important feature is that you remain true to
your profession and ensure that you explain the way in which the decision
was made.
If for example ifyour decision was made in an emergency do not be afraid to
say that it was made in an emergency. Do not be backward in explaining
the complexity of your decisions - however be mindful that being humble is
almost universally preferred to being arrogant. Above all else remain
professional.
As was explained earlier, in most inquiries around the world the test for the
reasonableness and appropriateness of what you do is not "with hindsight" it
is on the basis of whether what you did in all the circumstances was within
the range of possible responses for a person endowed with your level of
experience, education and responsibility. As noted above, do not be afraid
to be humble it is often useful to explain that you did your best even if
some people say that your best was not good enough.
3. THE IONISING RADIATION INDUSTRY PERSPECTIVE ON LEGAL
RISK
Increasingly, professionals working within the industry are having their job
descriptions fundamentally changed. A physicist who specialised in the
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production of plutonium based nuclear war heads may now find themselves
decommissioning them.
A professional previously charged with building and maintaining nuclear power
facilities may now be asked to take part in their premature decommissioning.
Institutions which previously enjoyed a veil of and absolute support from
government because of the contribution they made to national security may be
reclassified as either undesirable or even appropriate for private sale as
businesses.
In addition to these changes in the political environment there is the real prospect
that new members to the European Union will bring with them legacies of poorly
designed and maintained Soviet nuclear facilities and nuclear weapons.
Never before have there been such mixed messages and challenges for
professionals working in the nuclear industry.
It is this complex political and social environment which places the professional at
most legal risk. Laws are not only changing, they are being reversed public and
political opinion is changing rapidly, this creates a turbulent legal and political
environment in which professionals must work.
Simply recognising the risks such turbulence brings to individual professionals is
the most important step in protecting your conduct from adverse findings upon
review by a court, tribunal or even public Inquiry.
Being able to justify decisions at the time they are made is the best defence to
attacks upon your professional standing.
4. UNCERTAINTY
4.1 Project Uncertainty International Examples
The nature of uncertainty and change globally is reflected in examples of
unexpected decisions in England, Switzerland and Germany.
In Germany following a change in government the:
German program of developing new nuclear power stations was
stopped,
there was a declaration that no new licences for nuclear power stations
would be issued;
storage of spent fuel in underground repositories were suspended;
reprocessing of spent fuels in the United Kingdom and France was
immediately phased down; and
a series of bitter court cases between government and private nuclear
agencies commenced.
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Major projects in relation to long term waste storage facilities such as the
Gorleben repository project and the Nyrex site in England were
unexpectedly stopped. In September 1998 a Superior Administrative Court
at Magdeburg made orders effectively stopping any further waste placement
in the Morsleben repository. As at the time of writing this paper there are
multiple court cases under way in relation to the German Konrad site.
The situation in Switzerland at the Wellenberg site for storage also being as
a result of the unexpected intervention of the local Swiss Canton which
effectively overruled the Swiss Federal position to licence the Wellenberg
repository.
These fundamental changes in the direction of policy with respect to nuclear
installations and the treatment of nuclear waste confirm that the regulatory
environment in which nuclear waste professionals operate is not only
varying but it is varying rapidly and often unpredictably.
This makes the role of the professional in the industry much more complex
than it would otherwise be. When working in an industry sector which may
or may not have government support from time to time or from country to
country the radiation expert must be mindful of what controls are applicable
in his or her job and even more importantly the professional standards they
must meet.
4.2 International Practice Uncertainty Examples
(a) Example 1 - NORMS
Recent international interest in Naturally Occurring Radioactive
Materials ("NORMS") highlights the dynamics of regulatory trends in
relation to very low level wastes.
The EU is committed to a degree of unification in its regulation of
NORMs. To date agreement has not been reached. Debate in relation
to appropriate thresholds, units, remediation techniques and the like
are ongoing. It is inevitable, therefore, that there will be at best only
broad agreement with respect to a unified position in relation to
NORM management in Western Europe, let alone Eastern Europe,
Russia, the USA, Australia and other countries. However, there is
broad agreement that there should probably be:
a level above which an inquiry is required: a trigger level -
coupled with exemptions and qualifications.
a level to which remediation should attempt to treat NORMS,
coupled with the provision to exempt classes of materials from
the operation of the regulations in all EU states.
Thus, even with comparatively low level radioactivity material, there
is the potential for the rules to change on treatment and disposal
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options at any time. This could severely impact upon a remediation
program and in turn upon the professionals managing that program.
(b) Example 2 Protection of the Environment
Very broadly speaking standards for emission to the environment of
radioactive material have in the past been based on the operational
needs of a facility and not environmental and/or human dose rates.
The traditional approach to environmental protection from ionising
radiation has been reflected in publications of the International
Commission on Radiological Protection (ICRP). These publications
state that:
the standard of environment control and need to protect man
was thought would also ensure that other species are not put at
risk.
However there is an emerging view that these standards do not
necessarily protect the environment.
Recent trends in radiological protection of the environment can be
gleaned from documents such as the recent, Protection of the
Environment from the effects of Ionising Radiation - a report for
discussion from the IAEA.
The trend suggested in such documents is that radiological protection
will trend towards protection of the environment, not simply human
beings.
For example on page one of the noted IAEA report it is stated that:
. . . there is a growing need to examine methods to explicitly
address the protection of the environment from radiation. The
concept of sustainable development places Environment
Protection on an equal footing with human protection. On the
basis that it is necessary first to protect the environment in order
to protect human population, it is therefore necessary to
demonstrate protection of the environment explicitly.
Another concern is that without specific criteria of standards it
may become difficult to gain public acceptance of any activity
involving possible releases of radionuclides. The lack of
specific criteria of standards may also lead eventually to legal
difficulty. International and national policy commitments have
to be made to protect the environment but there is no generally
accepted method of demonstrating on how the policy
commitment can be met.
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There were four deficiencies in the studies described in this regard:
(a) the statements might not apply to all time and space
scales or under all conditions such as situations where
humans, or pathways to them are absent;
(b) the lack of specific environmental protection criteria or
standards, and guidance to support their implementation,
may undermine public confidence in decisions made with
regard to nuclear issues such as waste, disposal options
and assessment of their impact;
(c) approaches as to assessing the environmental impact of
radionuclides (protection of the public) differ from those
used to assess the impact of other pollutants (protection of
biota), thereby creating inconsistencies in the underlying
basis of standards applied to the radioactive and non-
radioactive materials of authorised discharges from
licensed nuclear sites;
(d) there is no internationally endorsed method of providing
explicit assurances that measures presently taken to
protect the environment against ionising radiation are
adequate.
It is also apparent that, in determining the appropriate level to
discharge into an environment, the nature of the particular
environment must be considered. For example, it has been suggested
that a radiation dose to deep sea fauna which met human health
guidelines can cause environmental harm.
The importance of this is highlighted when all of these matters are
placed within the international law context:
the general scope of environment protection is wide in recent
years, mainly as a result of the United Nations Conference on
Environment and Development (UNCED) earth summit in Rio
de Janerio in 1992. The Rio declaration on Environment and
Development emphasises the issue of sustainable development,
implying that development should only take place with proper
consideration of the use and maintenance of natural resources.
It was agreed that environment protection shall constitute an
integral part of the development process and cannot be
considered in isolation from it (principle 4). The convention of
biological diversity addresses the issue of protection of the
environment specifically in terms of preserving genetic and
biological diversity, biological resources and habitat.
Agenda 21 of the report of the UNCED also contained specific
recommendations concerning radioactive wastes and the
environment. It is recommended that states should:
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(a) support, if it is within IAEA, to develop and promulgate
radioactive waste safety standards or guidelines in coded
practice as an internationally accepted basis for the safe
and environmentally sound management and disposal of
radioactive wastes and
(b) promote proper planning, including environmental
impact assessment where appropriate, for safe and
environmentally sound management of radioactive waste
including emergency procedure, storage, transportation,
and disposal prior to and after activities that generate
such waste.
Given these trends in environmental protection it is conceivable that
current options for free release of radioactive materials into the
environment, such as dilute and disperse or even existing authorities
for release may be revoked or at the very least made more stringent
sooner rather than later.
An expert advising on a waste strategy must be mindful of these
trends when providing advice on waste management options in the
future. Failure to take account of these trends could easily
compromise future management of contaminated facilities and
decommissioning programs, exposing the adviser to severe criticism
even legal attack.
(c) Example 3 Reprocessing Spent Fuel
The reprocessing sector is under rigorous review internationally.
In the United States, the Department of Energy has decided that spent
nuclear fuel should be melted down for permanent disposal rather than
reprocessed for re-use as a fuel or other product.
This is noted in documents such as the "Savannah River site spent fuel
management final environment impact statement" which is an
evaluation of alternatives for the safe and efficient management of
spent nuclear fuel from power plants that is stored at or scheduled to
be received by the Savannah River site in South Carolina.
In America the link between spent fuel reprocessing and nuclear
proliferation coupled with concern over separating the waste into high
grade uranium and liquid radioactive waste highlights a trend away
from reprocessing to long term storage of wastes.
In England the current debates regarding the Sellafield reprocessing
operations are consistent with the American trends.
There have also been calls from the Danish Environment Minister to
suspend the operation of Sellafield's fuel reprocessing plant. Denmark
and Ireland have called for a stop to reprocessing because they believe
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there would be less overall radioactive discharges to the environment
if waste were stored rather than reprocessed.
Plans for the management of materials which rely upon remediation
reprocessing wastes no matter what scientific merits this brings in
the medium to long term should be reviewed. Failure to do so in the
face of current international trends may render the advisors vulnerable
to legal attack for failing to take into account relevant matters.
(d) Example 4 - Long Term Storage
Although it is generally accepted that long term disposal of
radioactive waste is desirable there is general resistance to the siting
of high level waste repositories at specific locations in most countries
(eg. Germany, Switzerland, England, Australia).
Unfortunately the dual requirements of comparative political stability
coupled with geological stability (which is generally thought to be
necessary for long term storage of high level radioactive material) is
difficult to fulfil.
Failure to provide long term storage facilities for Nuclear Wastes will
compound the risks associated with surface and near surface long term
waste management strategies. There is an immediate conflict between
the accelerated decommissioning and non-reprocessing movement and
the lack of community co-operation in providing long term medium
and high level waste containment facilities.
Unless this conflict is resolved the accelerated rates of premature
decommissioning of Nuclear facilities may result in increased risks of
radioactive contamination. Failure to communicate this fact may lead
to criticisms in the future of current remediation practices. It is
conceivable such criticism could be in the form of legal action against
experts whom failed to take adequate account of the changes in risk
associated with decommissioning facilities when long term storage
facilities were not available.
4.3 Complexity in the Regulatory Environment
The regulatory environment is a mixture of:
Law
Practice
Policy and
Standards
at local, regional, national and international levels.
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It must be assessed with regard not only to a particular time but also to a
location. The applicable standards for radiological control as at 7 July 2000
are very different in France, India, Russia, California and Bolivia. However
the standards for an employee of British Nuclear Fuels Limited (BNFL)
may well be the same, in some circumstances no matter where they are
working, no matter what the laws of a particular country.
An illustration of this complexity is simple. The following is a snap shot
of the regulatory environment in the United Kingdom.
Some of the key documents which would assist determining the applicable
standards in the United Kingdom include the:
Nuclear Installation Act 1965;
Radioactive Substances Act 1993;
Nuclear Reactors (Environment Impact Assessment for
Decommissioning) Regulations 1999,
Memorandum of Understanding (Environmental Agency and Health
and Safety Executive);
Letters of comfort;
Euratom 96/29;
Ospar Convention: Convention for the Protection of the Marine
Environment of North Atlantic. London Convention;
Joint Convention on the Safety of Spent Fuel and Radioactive Waste
Management;
UK National Policy on Radioactive Waste Disposal (1995) (CM2919,
1995);
Ospar Strategy with regard to radioactive substances (adopted July
1988 UK).
There are a range of concepts to be understood and applied in relation to the
exercise of a professionals discretion including:
safety justification;
as low as reasonably achievable;
safety assessment principles;
post operation clean out;
hazard and operatability analysis;
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failure modes and effects analysis;
cost benefit analysis;
multi-attribute utility analysis.
In addition an understanding of some of the regulators and organisations
which play a key role should be understood. This would include:
British Energy;
Health and Safety Executive;
Environment Agency;
Scottish Environment Protective Agency;
United Kingdom Atomic Energy Authority;
British Nuclear Fuels;
International Atomic Energy Agency;
Nuclear Installations Inspectorate;
OECDs Nuclear Energy Agency;
Ministry of Defence;
BNFL Magnox;
OSPAR.
Within this complex regulatory advisory and on occasions contradictory
environment the scope for making mistakes is large. When viewed
internationally the complexity of this environment becomes even more
clearly apparent.
You could not reasonably be expected to understand the intricacies of the
above regulatory environment, the competing international interests, and the
"players" in the nuclear industry.
It could also not be expected that the full agendas for the international
manoeuvring which is currently taking place within the industry could be
understood. In a very real sense professionals within the nuclear sector are
involved in a rollercoaster of regulatory change, perception, public opinion,
power, big business and political favour.
The most sure way of minimising your personal risks is to always ensure
that you are able to explain why you chose a particular course of action. If
your reasoning can be documented and takes account of relevant and
often conflicting factors you are well placed to defend your decision. To do
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otherwise is to expose yourself to risk legal prosecution, public vilification
and almost inevitably loss of professional reputation.
4.4 A Practical Example Deferred Decommissioning
By way of an example of how vulnerable decisions made in relation to
nuclear waste management and nuclear facility decommissioning can be I
will examine the issue of deferred decommissioning and provide an
example of a simple Question Answer series of the type you could
reasonably expect to occur at a public or judicial Inquiry.
5. DEFERRED DECOMMISSIONING
5.1 Discounting
The concept of discounting the cost for decommissioning nuclear facilities
is often used as one of the justifications for delaying the decommissioning
of nuclear facilities. The rationale is clear enough - if you put money in the
bank today it will be worth more tomorrow and if you don't spend money
today you have the advantage of having the benefit of investing it until
tomorrow.
This concept has been used by people expert in valuing businesses as a way
of accounting for the actual liabilities associated with a business. In a sense
if a liability can be deferred into the future, it becomes a smaller liability
than one that has to be accounted for today.
This rationale is being used to extend funding for the decommissioning of
facilities such as UK Magnox liabilities to around the year 2150. In other
words the decommissioning of some facilities is not anticipated to be
completed until around 2150 AD.
A graphical analysis of 6% depreciation over a period of 50 years indicates
that the effectiveness of the depreciation advantage decreases rapidly with
time. It shows that the decommissioning cost has reduced to only 50% of
the initial cost in around 10 years.
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The 16
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The amount of discount per year can be ascertained from the following graph. It
highlights the decreased annual advantage of discounting as a function of time.
Effective Decommissioning Cost as % of
Current Cost- years from present
0
20
40
60
80
100
120
16
1
1
1
6
2
1
2
6
3
1
3
6
4
1
4
6
5
1
Year s f r om pr esent
C
o
s
t

-

a
s

p
e
r
c
e
n
t
a
g
e

o
f

p
r
e
s
e
n
t

c
o
s
t
6% Di scount
Yearly Decommissioning cost reduction at
6% Depreciation
0
1
2
3
4
5
6
7
159
1
3
1
7
2
1
2
5
2
9
3
3
3
7
4
1
4
5
4
9
Year
A
n
u
a
l

%

p
r
i
c
e

r
e
d
u
c
t
i
o
n
Ef f ec t i v e
Dec ommi s s i oni ng
c o s t r e d u c t i o n
_______________________________________________________________________________________________________
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18
5.2 Other Factors
Of course there are other factors which determine the best time to
decommission.
From experience we know that time delays can cause complications in
decommissioning because:
the plans, even endorsed as built plans, will not be accurate;
data collected during the operation of the facility may be different to
the data required for decommissioning;
actual knowledge of the history and operation of the utility may be
important in determining the best way to decommission the plant;
during the operational life of a facility there is a very high probability
that there will have been;
changes within the plant (due to improvements in technology);
refinements (following operational experience);
modifications due to improved technology or changed standards
occurring;
Your ability to deal with wastes may change as regulations and routes
for waste disposal change.
Thus the benefits of delaying decommissioning - such as decreased
radioactive activity and reduced costs - must be balanced against increased
risks noted above such as loss of knowledge of a facility, loss of skilled
staff, further degeneration of plant, changes in the regulatory environment,
and accelerated degradation of plant following withdrawal of maintenance
regime (the cold and dark system).
A further complication during decommissioning is that the data which is
important for decommissioning tasks is very different to operational
information. Therefore not only is it conceivable that the decommissioning
activity may be taking place in an environment which is comparatively
hostile to nuclear facilities generally and nuclear waste particularly but that
the radioactive material from the site may be increasingly difficult to both
categorise and dispose of in a way consistent with policy and regulation as it
exists from time to time in the future.
The creation of waste streams during future decommissioning in the
mistaken belief that a particular category of waste will be acceptable off site
is likely to occur in the future. Furthermore there are likely to be other
highly complex potentially toxic and dangerous compounds on the site
which will also require special attention and disposal which may also be the
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The 16
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subject of regulatory change. The complexity of real life reactions as
opposed to those in the laboratory cannot be underestimated. This increases
the importance of dealing with decommissioning issues in a timely manner.
A striking example of these real life complications would be the challenges
of disposing of nearly one and a half thousand tonnes of liquid sodium from
the primary and secondary circuits of the prototype fast reactor at Dounreay
during the decommissioning process.
For the professional in the decommissioning field issues associated with
radiation are often just the tip of the complex tasks at hand.
6. HYPOTHETICAL
6.1 A Deferred Decommissioning Scenario
Given the complexity of decision making, and in particular the breadth of
factors that have to be considered when exercising your discretion with
respect to radioactive matters it is essential that you have an understanding
of how to conduct yourself in the face of both court (criminal or civil) and
informal (public) inquiries.
I have drafted a hypothetical fact situation to illustrate the potential
vulnerability of experts to third party scrutiny.
Scenario - In 1999 you are asked to advise on the best time to decommission
a nuclear reactor. The project manager makes it very clear to you that the
answer required is at least 2100, preferably 2150 because of finance issues
associated with the privatisation of the company which holds the liability
you are left in no doubt about the preferred answer to your independent task.
You are an engineer - not a banker however you hear what is being said.
At the time of making your recommendation the facility had close access to
an underground storage facility for medium level wastes and you anticipated
that significant quantities of medium level waste would be produced by the
decommissioning. You were also aware that the existing waste receiving
facilities were under increased pressure as the capacity of the waste facility
was limited and there was a political debate occurring about tightening the
regulations about the waste that could be accepted by the site.
You were also aware that the facility to be decommissioned had an
operative license to discharge materials on an operational "needs" basis
even during decommissioning.
You where also aware that there was a large amount of plutonium within the
reactor vessel and that the reason the facility was being decommissioned
was due to unexpected component failures in the heat exchange system near
the reactor core.
In July 2000 you recommend that decommissioning of the reactor vessel be
delayed for 100 years.
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Shortly after your recommendations are made you receive a well deserved
promotion to a strategic project management position.
Your recommendations to delay decommissioning include the following
statements:
"I have considered all issues associated with the decommissioning
schedule for the facility.
As the engineer principally charged with the decommissioning of
reactor I make the following observations:
1. A delay of 100 years is likely to reduce the radioactivity of the
materials within the facility.
2. The facility is in a secure state with no appreciable risk of
unacceptable discharges of radioactive material to the
environment over the next 100 years.
3. There is a likelihood that emerging technologies will be
available which will assist in the decommissioning of this plant
within the next 100 years.
4. The cost of decommissioning will be substantially less than
today due to government approved cost discounting of 6%
annually."
The following circumstances then transpire over the next 20 years.
Routine sampling of the coolant within the heat exchanger detect a
rapid increase in the radioactivity of the coolant. It is subsequently
determined that the state of the reactor core was - as experienced
during the operation of the facility - poor with accelerated
decomposition of the heat exchanger. The delay of 20 years in
decommissioning has allowed substantial contamination of the coolant
with highly radioactive material.
During the 20 year period the waste repository previously identified
can no longer accept wastes due to court action prohibiting its use.
As a result of the rapidly rising radioactivity in the heat exchange
coolants it is determined that there is no alternative but to
decommission the plant.
Unfortunately as the local waste disposal facility is now unavailable
large volumes of material will have to be stored either above ground
or shipped to an exotic repository in a distant country which only
accepts waste for payments in gold bullion. (Following the collapse of
the US$ and Euro in 2018.)
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The 16
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Upon opening the reactor it becomes apparent that the rate of
americium growth has been far greater than anticipated. The amount
of plutonium is also greater than expected. This further complicates
the decommissioning process.
6.2 Sample Court Examination
An internal Inquiry is held by your employer to determine who was
responsible for delaying the decommissioning. Your memo is found. You
are asked some questions it could go something like this:
Question: Are you the author of this memorandum which recommends
the delayed decommissioning of this facility?
Answer: Yes.
Question: Would you agree that you wrote this memorandum in your
capacity as an engineer?
Answer: Yes.
Question: Is it not the case that in addition to your tertiary qualifications
prior to writing that memorandum you had 25 years
experience in the nuclear industry with 10 years direct
experience in relation to decommissioning?
Answer: Yes.
Question: As part of your employment you received training from time
to time on developments, techniques and changes in
international experience in decommissioning nuclear
reactors?
Answer: Yes.
Question: In addition to that training you liased with other professionals
within the decommissioning industry?
Answer: Yes.
Question: And in 1999 you were aware that the reactor had been
decommissioned due to unexpected failure of the heat
exchange system within the reactor vessel?
Answer: Yes.
Question: And it is the case, is it not, that where there has been a history
of failure in a heat exchange unit within a reactor vessel there
is a likelihood that either because of a design and/or materials
failure the probability of further failure within the coolant
reactor interface is higher than had such failures not occurred
before the reactor was decommissioned?
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The 16
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Answer: Um, maybe, . . . probably . . . yes.
Question: Do you agree that in 1999 you were aware that there was a
likely change in permissible emission criteria from nuclear
facilities from operational needs basis to dose rate related?
Answer: Um.
Question: Are you saying you weren't aware of that?
Answer: Um, I was---
Question: Listen to my question, are you saying you were or you were
not aware of that?
Answer: Yes, I was aware of that.
Question: And would you agree that in 1999 repositories for wastes of
the sort you expected to generate from the decommissioning
of the facility were filling and that there had been the
cancellation of the Gourleben repository project in Germany,
the Nyrex proposal in the United Kingdom and the
Wellenberg repository in Switzerland?
Answer: Yes.
Question: Are you also aware that key staff from the facility who would
have been involved with its operation and modification right
up to and including shutting down were to be made redundant
once a decision to significantly delay decommissioning was
accepted?
Answer: Yes.
Question: Would you agree that it was general industry practice in
1999-2000 not to rely on unproven technologies to
decommission power stations in the future because industry
experience was that due to the complexity of the
decommissioning process unforeseen and undesirable
consequences in terms of delays and complications during
decommissioning could occur?
Answer: Yes, no - well, actually there was a new system being
developed for rapid cutting of thick metal which produced no
gas or particulate emissions at high speed without risk of
ignition, it was being spoken about at the time in the industry.
Question: Would you agree that that system is still not commercially
available?
Answer: Yes.
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The 16
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Question: In 1999 you knew about the risk of americium production in
reactors with high plutonium content didn't you?
Answer: Yes.
Question: You did not conduct tests to verify the information about the
amount of plutonium within the reactor vessel did you?
Answer: No.
Question: The introduction of large quantities of plutonium into the
cooling system of the reactor vessel has caused considerable
complications in the decommissioning of the reactor hasn't it?
Answer: Yes.
Question: The unavailability of the waste repository of the waste
generated has substantially increased the cost of the
decommissioning hasn't it?
Answer: Yes.
Question: The fact that staff experienced in the operational aspects of
the facility whom were available to assist with the
decommissioning had it occurred in 1999 were retrenched
has also complicated the decommissioning process hasn't it?
Answer: Yes, well maybe, actually they are not such a help because
you have to conduct your own tests people's memories are
not so helpful when decommissioning
Question: But you already told me you did not check the Plutonium
figures you were quoted for the reactor vessel that was a
mistake was it not?
Answer: Um.
Question: Decreases in the radioactivity of the materials in and
comprising the reactor vessel and heat exchanges has not
been so great as to result in any significant change to the
nature or amount of material to be disposed of, has it?
Answer: No.
Question: The delay in decommissioning the reactor vessel and heat
exchange units - as you advised - has resulted in:
(a) increased cost of the project;
(b) the mobilisation of wastes that can no longer be easily
disposed of;
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The 16
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(c) the generation of wastes which would not in the past
have had to be disposed of;
(d) no appreciable decrease in the amount of radioactive
waste to be disposed of?
Answer: Yes.
Question: Your recommendations have resulted in much higher costs
for the decommissioning, havent they?
Answer: Yes.
Question: You relied upon decommissioning cost discounting in your
rationale for delaying decommissioning didnt you?
Answer: Yes that was what we were told to do.
Question: Youve already told me youre an engineer not an
economist true?
Answer: Yes.
Question: Your advice was as an engineer ? Was it not?
Answer: True, as an Engineer.
Question: Look at the following 6% depreciation curve.
Effective Decommissioning Cost as
% of Current Cost- years from
present
0
20
40
60
80
100
120
17
1
3
1
9
2
5
3
1
3
7
4
3
4
9
Years from present
C
o
s
t

-

a
s

p
e
r
c
e
n
t
a
g
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o
f

p
r
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s
e
n
t

c
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6% Discount
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The 16
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Answer: Yes what about it?
Question: It shows that in about 10 years the cost to decommission has
halved doesnt it?
Answer: Yes.
Question: It also shows that the benefits of delay seem to level out
much sooner than 100 years doesn't it?
Answer: Yes.
Question: The depreciation curve does not indicate any significant
financial advantage in waiting 100 years to decommission
does it?
Answer: ?
That series of questions and answers highlights the importance of being able
to justify a decision.
In this particular instance the advice may or may not have been given due to
an awareness of the financial constraints on the project it does not matter.
If the dialog was taken further there would be an opportunity to explain
why the recommendations were made but at the stage of questioning noted
above no such opportunity was given.
7. CONCLUSION
There is often a temptation to bundle or compile a "rationale" for a particular
decision when in fact the factors cited are not the real factors at all. The difficulty
with doing this is that in the event things do not go according to plan a subsequent
inquiry may well find you responsible for improperly making a recommendation
on the basis that the reasoning you cited was inappropriate, not of sufficient
standard or simply wrong.
There are many circumstances in which the conduct of an engineer may be
subjected to review and in limited circumstances the engineer may be prosecuted
for criminal offence.
As a practical guide I have drafted a set of 10 commandments for technical
advisors in waste management and nuclear facility decommissioning.
When making a decision or recommendation ask yourself these questions:
(1) Do I understand the task?
(2) Am I qualified experience/qualifications - to perform the task?
(3) How does my decision/recommendation compare with what is normally
done in this organisation?
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The 16
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(4) What is the industry practice?
(5) Are there specific laws which I must comply with?
(6) Is there a code, a standard or other commonly accepted document which sets
down the standard or method for doing this?
(7) How will doing it this way effect options in the future?
(8) Is anything likely to occur in the future which will impact upon the
consequences of doing it this way today?
(9) Is there an adequate record of my reasoning process and the circumstances
of the question. eg. By whom, time frame, context etc.
(10) Does the decision or recommendation make common sense (reality check)?
If you ask yourself these questions you will make better - or at least - more
defensible decisions and recommendations.
When something unexpected occurs in the future, be it of a technical, economic or
political nature, there is nothing surer than inquiries will focus on past decisions
that have been made and the reasons for making them. In such circumstances, the
most precious commodity of all your professional reputation must be
protected.
Attending this conference and considering some of the matters raised in this
presentation will go some small way to helping you with the protection of that
reputation and withstanding external scrutiny of your judgement.
Arnold Dix
Scientist/Lawyer
Maddock Lonie & Chisholm
_______________________________________________________________________________________________________
The 16
th

Radioactive Waste Management in A World of Conflicting Expert Opinion and Regulation - A Legal Perspective

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