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Information for stakeholders - 4. The Licensing Process
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The establishment of a facility for storage and disposal of radioactive waste goes through a staged licensing process. The different stages of licensing under the ARPANS Act are outlined graphically in Figure 1 and include authorisations to do the following:
- prepare a site
- possess or control (this mainly relates to maintaining facility safety while not in active operation)
- decommission (or close a disposal facility)
- abandon (release from regulatory control).
Figure 1: The licensing stages for storage and disposal facilities. The operational period may extend over several decades or more than a century, during which waste is contained in the storage facility awaiting final management or (for a disposal facility) decommissioning of ancillary facilities and closure of the disposal facility. Following decommissioning of a storage facility, the site may be abandoned provided this can be done safely. For a disposal facility, a period of active institutional control is expected; this may extend to beyond 100 years. When the site is released from regulatory control and abandoned, and active institutional control terminated, its safety will be entirely dependent on engineered and other features that will not be actively managed or monitored. Information on location, waste inventory, design features and other characteristics of the facility and site, will be retained in archives to preserve the information for the future. Note that this figure illustrates the licensing stages only, not the relative length of those stages. For a disposal facility, the passive safety phase can be very long.
It should be noted that while the overall process is staged, there are strong linkages between each individual licence application. The licence application for each stage needs to be forward looking and contain sufficient information on the safety aspects of subsequent stage(s) to allow for an informed licensing decision.
Staging of licensing allows for gradual refinement of all aspects of design, operation and closure of a facility, and provides a mechanism for feedback of experience that may inform subsequent licensing stages. The appropriateness of the staged process is recognised in the IAEA Specific Safety Requirements No. SSR-5, Disposal of Radioactive Waste.
4.2.1. Sequence of activities
On receipt of an application, ARPANSA officers will assess whether the applicant has provided all required information. This initial assessment will commence only if the relevant application fee has been received. If the application is considered complete or at minimum reviewable, ARPANSA will advise the applicant of the commencement of the review. This does not exclude that further documentation may be requested as the review progresses.
For co-located new facilities, such as a waste store and a disposal facility, ARPANSA anticipates that the applicant will submit separate applications specific to each facility. ARPANSA normally expects a separate application for the different stages of the facility however the CEO may decide to cover more than one stage of a facility with one licence.
Figure 2: The general workflow for the review of an application for a nuclear installation. Note that the ‘indicative timescale’ is very approximate and highly dependent on complexity of the application; it can be used as an indication of time needed for review of an application for a NRWMF.
ARPANSA will as soon as practicable publish a notice in the Government Notices Gazette and in a newspaper circulated daily (and by other means as appropriate) stating that the CEO intends to make a decision on the application. The CEO must include in the notice:
- an invitation to people and bodies to make submissions about the application
- a period for making submissions
- procedures for making submissions.
Having received such submissions, the CEO must take them into account when deciding whether to issue a licence.
ARPANSA officers may provide clarification to an applicant regarding requirements in the ARPANS Act and Regulations, and on international best practice documents. Such advice supports safety and is an efficient use of resources however ARPANSA will not prescribe any particular design for a facility. Issues may also arise during the course of the review which will be resolved following appropriate processes. The resolution of such issues will be recorded.
ARPANSA officers will, on the basis of the totality of information, prepare a Regulatory Assessment Report with a recommendation to the CEO. The decision of the CEO (or delegate) will be communicated to the applicant and, for nuclear installations, also communicated more broadly and be accompanied by a separate Statement of Reasons (SoR) outlining the considerations and rationale for the decision, including information on issues resolved during the review phase. A licence will not be issued if ARPANSA considers there are doubts around the safety of a proposed facility, or the operator’s capacity to maintain safety.
The legal basis for the decision, correspondence and meeting minutes that record commitments, operational limits and conditions, conditions of licence, issue resolution records, and other relevant documentation form the licensing basis. It will be recorded in ARPANSA’s register of licensing basis. ARPANSA reviews the currency and appropriateness of the licensing basis periodically.
A licence is subject to conditions as set out in the ARPANS Act and Regulations as well as additional conditions which may be imposed by the CEO. For example, the frequency of safety and security reviews of the facility may be stated as a condition of licence. Licence conditions are not surrogates for safety. They outline certain additional requirements placed on the licence holder that will assure the CEO of ARPANSA that the licence holder is undertaking the licensed activity safely.
4.2.2. Interaction with other acts during review
As stated in section 3.3, the ARPANS Act and the Safeguards Act apply concurrently to some material and facilities. When considered early in the design process for a radioactive waste storage or disposal facility, there is little risk the requirements of the Acts will be incompatible (‘safety and security by design’). Under a Memorandum of Understanding, ARPANSA and ASNO, when deemed appropriate in the interest of regulatory efficiency and effectiveness, work jointly in order to reach well-informed regulatory decisions.
If radioactive waste that is also nuclear material is to be stored in a radioactive waste store, the applicant will require a permit for establishing a nuclear facility under the Safeguards Act. This permit is required for providing information to the IAEA. The permit will be required in order to begin construction of the store. Once the waste store is operational a permit is required for possession of nuclear material before any nuclear material is stored. This permit will cover accountancy, access of IAEA and ASNO to the premises, and security requirements.
For a new Commonwealth facility that may potentially require approval under both the EPBC Act and the ARPANS Act, ARPANSA will advise stakeholders, including the Department of Environment and Energy, on best practice safety considerations. ARPANSA will not provide advice that may be perceived as pre-empting the outcome of ARPANSA’s subsequent regulatory review should a permission under the EPBC Act be granted.
Should the Minister for the Environment and Energy be satisfied that the risks from a nuclear action are manageable, the review process could commence under both the EPBC Act and the ARPANS Act concurrently. There is no specific statutory requirement for applications and regulatory reviews under the ARPANS Act or EPBC Act to be made in any particular order. Under the ARPANS Act, the CEO may request “any environmental impact statement required or requested by a government agency, and the outcome of the environmental assessment”, as part of the application for a licence to prepare a site for a controlled facility. In such cases, it is reasonable to expect that the review under the EPBC Act will be concluded before ARPANSA’s review can be finalised.
The NRWM Act provides for the establishment of a regional consultative committee. ARPANSA may be invited to interact with this committee.
A decision under the ARPANS Act on a licence application has to be robust and stand up to scrutiny by all interested parties (stakeholders). The decision is reviewable and appeals can be made. One of the main purposes of consultation is to take stock of information and knowledge among interested parties in order to take the best informed decision possible, and in doing so, make the decision more robust. This does not mean that the interested parties’ views will determine the outcome of the licensing process however effective consultation ensures that the views of interested parties have been heard and their knowledge considered in a manner that is transparent and reflected in the SoR for the decision.
There is no prescribed format for consultation, apart from an obligation to invite submissions. A variety of models can be considered, depending on the type of facility and the associated radiation risks, as well as available resources. These include information/consultation meetings with the general public; meetings with specific stakeholders; web-based mechanisms for information exchange; hearings; or a combination of several of these activities. The optimal method for consultation is best agreed with the interested parties themselves.
ARPANSA also endeavours as much as practicable to engage with stakeholders regarding storage and disposal of radioactive waste before the formal lodging of an application. The purpose is to outline the role and responsibilities of ARPANSA in regards to the protection of health and safety of people, and of the environment and what can be expected from the agency before, during and after a licensing decision. ARPANSA does not take on an advocacy role in relation to any specific plan or concept.
The role of regulators in interacting with stakeholders in matters that relate to the establishment of radioactive waste management facilities is recognised internationally, while also acknowledging that the ultimate responsibility for safety rests with the operator. The Organisation of Economic Co-operation and Development (OECD), through its Nuclear Energy Agency (NEA), describes this role in The evolving Role and Image of the Regulator in Radioactive Waste Management: Trends over two Decades, as reflected below.
The ARPANS Act provides a right of appeal of the CEO’s decision in relation to a licence or an application for a licence to the Minister of Health. However this right of appeal is restricted to an applicant for a licence or a licence holder.
Third parties who are sufficiently affected by the decision may seek a judicial review of the CEO’s decision under the Administrative Decisions (Judicial Review) Act 1977. However a judicial review involves only a review of whether the CEO made the decision in accordance with the law and not whether the decision was the right one or should have been different.
In general, interested parties who have concerns about the appropriateness of granting a licence to a particular facility should utilise the public consultation process to express and explain those concerns. Where, in a particular licence assessment process, there is no requirement for a formal public consultation, ARPANSA provides a mechanism via its website for concerned individuals to report safety concerns in relation to existing or proposed facilities and activities. This information is treated confidentially to the extent allowable under the law.
Where there are suggestions of impropriety either by the applicant or ARPANSA in the licence application and assessment process, certain individuals (generally public officials or former public officials) can make protected disclosures under the Public Interest Disclosure Act 2013 (PID Act). For more information on the PID Act and how to make a disclosure see ARPANSA’s website.