The manner in which AELB and Lynas Corporation are conducting public disclosure makes a mockery of international best practices, safety standards and the various International Atomic Energy Agency (IAEA) recommendations which the government and Lynas had pledged they will honour.
Public Information and disclosure
Among the other IAEA recommendations relevant to public disclosure are:
Lynas should intensify its communication with interested and affected parties in order to demonstrate how it will ensure the radiological safety of the public and the environment.
AELB should intensify its activities regarding public information and public involvement.
These recommendations are an implicit acknowledgment by the IAEA that Lynas and AELB have all along operated in a non-transparent, unacceptable manner and both entities have to improve their policies on public disclosure and consultation with the rakyat.
Over the New Year holiday on 2nd January 2012, the Ministry of Science, Technology and Innovation (MOSTI) announced that the Malaysia Atomic Energy Licensing Board (AELB) will display Lynas’ application for a temporary operating licence (TOL) for public feedback for barely 11 working days at several locations – AELB headquarters in Dengkil, Selangor; the Pahang State Secretariat, Kuantan; AELB’s site office at Lynas, Gebeng; and AELB’s east coast branch office Kemaman, Terengganu. Those who want to read the document have to submit a form provided at the locations before noon on Jan 20th (sic).
These restricted locations and the process requirements are impediments to the public who want to view the document. The restrictions including the AELB form requirement is also tantamount to public intimidation.
In comparison, the Department of Environment (DOE) allocates a much longer review period without any requirement to fill up a form beforehand. The DOE allocates 5 weeks for a review of a Preliminary EIA (PEIA) report and 12 weeks for review of a Detailed EIA (DEIA) report. (For example, the DEIA Report for the Proposed Hydroelectric Project Hulu Terengganu by Tenaga Nasional Berhad was on public display from 30 Sept – 31 Oct 2008 at several specific locations and at all State offices of the DOE and the written comments must be submitted by 13 November 2008. The Executive Summary of the DEIA was also available online on the DOE website. The DEIA could even be purchased from a clearly indicated address. (Source: http://www.wwf.org.my/about_wwf/what_we_do/policy_main/policy_what_you_can_do/detailed_environmental_impact_assessment_for_public_review_2.cfm). There was no requirement for members of the public who wanted to review the DEIA to fill up a form, as is currently required by the AELB).
It is important to note that the DOE EIA Review process is clearly explained in DOE documents such as its widely published EIA Guidelines, Handbooks and also on the DOE official website, including details of the composition of the Review Panel etc. In stark contrast, the AELB seems to be an ad hoc, non-transparent, non-independent and much hurried process which may be susceptible and has clearly led to unfair and unprofessional practices. This indicates that the AELB has poor governance and has not fulfilled the recommendations made by the IAEA report to significantly improve AELB, inter alia, AELB technical skills and capacity as well as independence in order for AELB to handle regulation of industries such as Lynas.
Other impediments include, inter alia, members of the public who made time to view Lynas’ application were given ONE hour to read the 300-400 page technical document, and barred from carrying cameras, handphones and videocameras when inspecting the document. Some members of the public was escorted to the AELB office by Lynas staff, once again indicating that AELB is not independent. This also reveals the utter disregard and contempt the authorities, including the AELB, have for public accountability and transparency. The level and quality of engagement and consultation with the rakyat have been woefully inadequate. The project was hurriedly approved in 2008, without public consultation; a series of public discussions that had been planned were abruptly cancelled after only two sessions. The MB of Pahang refused to meet and hold talks with groups who opposed the project and called them irrational.
By not adhering to a credible process of public review as recommended by IAEA, the AELB should reject the Lynas project application for a temporary or permanent operating licence.
IAEA general safety guideline on and Classification of Radioactive Wastes
According to the IAEA’s general safety guides (GSG) on Radioactive Waste Classification (GSG-1), the radioactivity level of Lynas’ WLP solid waste which is reportedly at 6.2 Bq/g is categorised as Low Level (radioactive) Waste. The IAEA GSG-1 states that wastes in this class requires robust isolation and containment for periods of up to 300 years and is suitable for disposal in engineered near surface facilities. The typical safe storage depth is from the surface down to 30 meters.
According to Dr Lee Chee Hong in his comments (August 2011) on the IAEA Report, if the classification of Radioactive Wastes Safety Guide (GSG-1) was to be enforced for the WLP residue, then the RSF (Residue Storage Facilities) disposal method proposed by Lynas would be violating the IAEA standards.
Thus, a temporary operating licence (TOL) for Lynas would be contrary to the IAEA standards, safety guidelines and its specific recommendations on how AELB and the Malaysian government should be managing Lynas.
TOL under Act 304 does not fulfill IAEA recommendations
The temporary operation licence (TOL) is a stipulation of the Malaysian Radiation protection (Licensing) Regulations 1986 of the Atomic Energy Licensing Act 1984 (Act 304) – the main law governing radiation protection. However, Act 304 and its subsidiary regulations are sadly lagging behind international standards. Act 304 is very general in nature and woefully inadequate to handle rare earth processing plants especially the regulation of the safety aspects of the rare earth process, the radioactive waste disposal and storage, clearance threshold, radiation leakage, and health and safety damages caused by radioactive elements. Act 304 does not even regulate NORM (naturally occurring radioactive materials) and TENORM (technologically enhanced naturally occurring radioactive materials). More significantly, the Act invests wide ranging discretionary powers to the AELB and the Minister.
Thus, as far as the archaic Act 304 is concerned, theoretically, industries such as Lynas are potentially allowed to accumulate and dispose the water leach purification (WLP) radioactive solid waste residue on site if they obtained a written authorisation (e.g. TOL) from AELB. This is one way that Lynas can bypass the permanent waste storage impasse.
Given that the licensing and approval process hinges on the safe disposal and storage of radioactive wastes, it appears that Lynas has failed to come up with a credible solution to meet the conditions set out by the IAEA review. This is attested by the fact that Lynas has made five submissions (officially three) which were all rejected and the current one on display is the 6th revised version (officially the 4th).
According to Lynas Malaysia managing director Ahmad Marshal in a media event in December, the plan is to process the wastes into, among others, fertilisers and gypsum boards for sale. Under the current Act 304 and its subsidiary regulations that do not set disposal limits or the method of safe disposal and storage of radioactive wastes, what Lynas proposed could be done albeit with potential future consequences. It is left to the incompetent AELB alone to decide the exemption limits and methods for safe disposal and storage.
However, the TOL and its consequences would be contrary to IAEA standards, guidelines (e.g. the GSG-1) and specific recommendations for AELB and Lynas. IAEA recommendations have called for AELB to improve its human, financial and technical resources, competence and independence before it is deemed fit to regulate Lynas. To date there is no evidence that the Malaysian government and AELB have adhered to the IAEA recommendations. Currently, AELB cannot and is incapable of regulating Lynas and similar industries.
TOL is against Precautionary Principle
A temporary licence for activities generating radioactive wastes does not make sense neither is it based on international best practices principles – as once the wastes is produced, it is there. This is also not in keeping with the Precautionary Principle that Malaysia has agreed to in many environmental agreements and guidelines. The Precautionary Principle states that in the absence of scientific consensus that the action or policy is harmful, the burden of proof that it is not harmful falls on the proponent. The principle promotes social responsibility to protect the public from harm.
As well the Malaysian authorities have failed to observe international best practices and legal principles other than the Precautionary Principle e.g. the Local Agenda 21 on sustainable development; public consultation and participation and the principle of prior informed consent; and public accountability and transparency.
AELB Independence: Ministry responsible is MITI or MOSTI?
The Ministry of International Trade and Industry (MITI) indicated that AELB will meet on 30 January 2012 to decide on Lynas’ TOL application. It is highly perturbing that MITI continues to overstep its jurisdiction by yet again overtaking the role of MOSTI/AELB in the Lynas regulation process.
When the PEIA and RIA were made available to the public as a result of public pressure, there were serious doubts on the whole approval procedure and due diligence process. In fact, the poor governance made the credibility of the regulatory process doubtful. The regulatory authorities revealed that they were incapable of safely monitoring the Lynas operation, the radioactive wastes storage, disposal and decommissioning process in the future. To compound the problem further, MITI overstepped its jurisdiction and became the self-appointed spokesman endorsing the safety of Lynas’s plant operations. As it is, MITI is not the qualified ministry for the governance of ultrahazardous radioactive activities and public health and safety concerns. This again shows the poor governance and lack of due diligence in the whole process.
The MB of Pahang had said that the radiation level from Lynas’ plant is lower than bitumen used to resurface roads. AELB’s previous public announcements have also stretched the public’s credulity to the limit e.g. AELB DG Raja Datuk Abdul Aziz Raja Adnan had in April said that Lynas’ radioactive waste was so safe ‘you can just tabur (scatter) everywhere’. Such unqualified endorsements that the Lynas plant was safe by both unqualified politicians and the civil authorities can only mean they have become the spokespersons for Lynas.
The ‘seamless’ roles of Lynas employees and AELB’s officials makes the latter’s independence and authority highly questionable. When Lynas revealed in May 2011 that it had paid a sum of money to the Malaysian authorities as an indemnity for radioactive waste as part of AELB requirement, the DG of AELB denied this. ‘It’s got nothing to do with AELB. You got to check with MIDA. Check with MITI’ he was quoted. Till today no information has been forthcoming from any authority.
This poor governance structure and non-transparency has resulted in the IAEA international experts to make a clear recommendation that the AELB/MOSTI must have independence from other influences in order to be able to regulate industries such as Lynas.
The AELB should not issue a temporary operating licence (TOL) to Lynas.
Further, for the Malaysian government to regain public credibility and confidence CAP-SAM urges the following:
• A judicial review of the government’s role and responsibilities in relation to public information disclosure and public participation;
• A transparent process with a detailed and integrated approach that incorporates a socio economic impact assessment, health and safety impact assessment, a detailed EIA and RIA which will be coordinated and reviewed by an independent panel of technical experts;
• A total review and revamp of Act 304 and its subsidiary regulations. At present it is a weak and toothless law and it needs to meet the requirements of international standards;
• AELB/MOSTI, DOE/MNRE, MIDA/MITI and MOH must be independent and must be seen to be independent when it comes to issues which are within their jurisdictions. They must exercise integrity, professionalism and competence in their duties and work. This is in line with good governance;
• MITI and MIDA (Malaysian Investment Development Authority) must beef up its capacities and expertise. There must be a review of MITI and MIDA and how it promotes foreign investments. They need to attract clean, sustainable and job creating industries instead of dirty toxic ones;
• MITI and MIDA should respect the authority and competency of the regulatory authorities and should not guarantee projects which have not been approved by other regulatory bodies;
• In the interest of good governance, there should be public disclosure and access to proposed MOUs with foreign investors. In light of this, the government must disclose how much it will have to pay Lynas Corp if the project is cancelled;
• The government must ensure that all impact assessment studies have high standards of integrity, professionalism and expertise. Consultants who fail to meet the standards should be deregistered and blacklisted; and
• The government must seriously improve its governance.
11 January 2012