CAP-SAM Written Submission to MOSTI /AELB: Review of the Lynas documents “Radioactive Waste Management Plan” and “Safety Case for Radioactive Wastes Disposal”

Date:  20 January 2012

Introduction

The Lynas Radioactive Waste Management Plan (RWMP) poses more questions about the professionalism, competence and ethics of the entire review and compliance process. The inclusion of controversial provisions inter alia on the reuse and recycling of radioactive wastes; the arbitrary classification of radioactive wastes which radically differs from the latest International Atomic Energy Agency (IAEA) classification of radioactive wastes; the glaring and shocking omission of the Decommissioning and Cessation plans; and the non-identification of the Permanent Disposal Facility and its casual dismissal by Lynas even as it prepares to commence operations, renders the RWMP inherently flawed, makes the public review process meaningless and invalidates the RWMP as an expert document.

Our comments are, inter alia:

1.    The Atomic Energy Licensing (Radioactive Waste Management) Regulations 2011 or P.U.(A) 274

Unknown to the public, this newly minted Regulations which was gazetted on 16 August 2011 and quietly put up on the Malaysian AELB’s website to coincide with the release of Lynas’ RWMP, has created new provisions which allow the reuse and recycling of radioactive materials. For example:

‘Part VI          REUSE AND RECYCLE OF RADIOACTIVE MATERIAL.
 Reuse and Recycle
9.     The licensee shall, before declaring radioactive material including a sealed source as radioactive waste, consider whether he or any other person can make use of or recycle the radioactive material.’

 
The regulations are very general and actually give a licensee carte blanche to manage the radioactive wastes upon approval from AELB. It appears that this piece of legislation has been specifically crafted to meet Lynas’ needs and propitiously timed to allow Lynas to apply for the temporary operating licence (TOL) thus facilitating Lynas to circumvent the problem of the storage of radioactive wastes which until today it has failed to provide a credible solution.

Compared to the IAEA General Safety Guide, the new Malaysian P.U. (A) 274 regulations do not clearly set limits or standards for exemption of radioactive wastes based on radiation exposure that is allowed for individuals.

According to the IAEA GSG-1 (General Safety Guide-1, pp8-9) on the category Exempt Waste (EW), ‘The primary radiological basis for establishing values of activity concentration for the exemption of bulk amounts of material and for clearance is that the effective doses to individuals should be of the order of 10 μSv or less in a year. To take account of the occurrence of low probability events leading to higher radiation exposures, an additional criterion was used, namely, the effective doses due to such low probability events should not exceed 1 mSv in a year. …’

This is in sharp contrast to Lynas’ own Radiological Impact Assessment (RIA) report which states: ‘The highest possible doses to be received by workers resulting from operation of the plant for the first 10 years are below 13mSv per year’ (RIA, p71). It further states ‘that there will be a period of about 1500 years from now when members of  the public may get doses as high as 6.23 mSv/y from the residue’ (RIA, p68).

The RIA concludes that the ‘estimated individual annual doses for the driver, loader and all workers working in the process areas of the plant are between 3.04 x 10-2 mSv/y to 12.68 mSv/y’ with workers ‘depositing the WLP residue’ will receive radiation doses of 4.34 mSv/y (RIA, p63).

Please note that the upper limits of exposure mentioned in the Lynas RIA report itself is much higher than the allowable limit set by the IAEA for the wastes to be categorised as Exempt Wastes (or Cleared Wastes, under the P.U.(A)274).

We now have a situation where AELB has arbitrarily set its own safety standards for radiation exposure, which is not according to the international standard. The AELB standards will be used to exempt and clear Lynas’ radioactive wastes for reuse and recycle. This would endanger public health.

2.    Lynas labels its radioactive wastes as ‘residue’

Page 1 of the Executive Summary of Lynas’ RWMP states:
‘While this document is termed as a Radioactive Waste Management Plan, Lynas considers the process waste generated from the LAMP operation to be “residues” as these waste streams can be reprocessed and commercialized in a variety of applications. The term “waste” is not preferred at this stage as it denotes an end product or material suitable only for disposal after all avenues for reuse and reprocess have been exhausted. This assumption is consistent with the Atomic Energy Licensing (Radioactive Waste Management) Regulations, 2011 which requires reuse and recycle options to be fully explored before any radioactive material is declared as radioactive waste meant for disposal.’

Since the regulations P.U.(A) 274 allow radioactive wastes to be used and recycled, Lynas is taking advantage of this clause to declare that its radioactive wastes are harmless and safe. This enables Lynas to submit its RWMP plan as it can now claim to have fulfill AELB’s requirements.

However, not all Lynas’ LAMP wastes can be reprocessed and commercialised. As stated in the RWMP report itself, all is still at the research stage with potential of not being successful, and appear only on the ‘drawing board’.

The controversial P.U.(A) 274 regulations cannot be used to render radioactive wastes as non-radioactive.

Lynas’ Radioactive Waste Management Plan (RWMP) emphasis towards reuse and recycling of the radioactive wastes is based on this flawed assumption of the wastes being suitable for reprocessing and commercial use as per the P.U.(A)274 provision for reuse and recycling. This reveals Lynas’ cavalier attitude towards public health and environmental safety.

More disturbing is the fact that the imported Lathanides concentrates itself already contain a total radiation activity of 61 Bq/g, and has Thorium (ThO) content of 1600 ppm and Uranium (U3O8) content of 29 ppm, as reported in the Lynas EIA itself (EIA, pp2-6).

Moreover, the final disposal material i.e. the Flue Gas Desulfurisation Residue (FGD), the Neutralisation Underflow Residue (NUF) and the Water Leach Purification residue (WLP) also contain Uranium and Thorium.  These are ultrahazardous materials. Lynas is duty bound to demonstrate satisfactorily how it will manage and dispose of these radioactive substances before it generates the wastes.

The new P.U.(A) 274 regulations legitimises what Lynas is doing and AELB is a party to this.

3.    Comparison of IAEA and AELB radioactive wastes classification schemes

According to the IAEA General Safety Guideline (GSG-1), the latest IAEA radioactive wastes classification has six categories. However, under the Malaysian AELB’s P.U.(A)274 Regulations 2011,  its radioactive wastes classification has only five categories. The missing one category in the Malaysian AELB regulation is a very crucial category.

Under the IAEA classification scheme, the Lynas’ WLP (Water Leach Purification) wastes would fall under the LLW (Low Level Waste) or VLLW (Very Low Level Wastes) categories. Both LLW and VLLW would require a regulatory control of disposal, including a specified engineered disposal area.

Unlike the IAEA radioactive wastes classification, AELB’s five categories in its wastes classification do not include a ‘very low level waste’ (VLLW) category. In the First Schedule of the P.U.(A) 274, there are three categories of Low Level Wastes but no category of VLLW. If AELB has subsumed the VLLW into its Cleared Wastes category, it does not need to regulate the WLP residues. Lynas will attempt to fit its WLP wastes into the Cleared Waste category, going by its expressed intention to reprocess and commercialise the ‘residues’.

It would appear that using AELB’s radioactive wastes classification, the WLP would presumably fall under the Cleared Waste (Exempted) category allowing it to be used and recycled, and, ‘scattered everywhere’ as according to AELB DG Raja Datuk Abdul Aziz Raja Adnan.

As discussed earlier, under the IAEA GSG-1 guideline, any wastes to be categorised as Exempted Wastes (EW) has a very low limit allowed for individual exposure in mSv/year. However, the AELB P.U.(A)274 is not clear on its Cleared Waste category and on what basis the cut off points are made.

Despite reassurances from Lynas’ safety advisor Professor Ismail Bahari (former UKM radiology professor) that ‘it can dilute the WLP to below 1Bq/g to be used as a base in road building’, the volume of radioactive wastes generated makes it physically impossible to do so. Professor Ismail says that ‘if you mix the WLP with 10 times the amount in the soil, it is already at ground level (radiation)’. Please note that the Lynas EIA (pp5-53) estimates that 145,200 tons of wastes will be generated annually i.e.
•    The WLP (Water Leach Purification) residue from the Cracking and Separation plant (32,000 tonnes per year at 62 Bq/g)
•    The FGD (Flue gas desulphurization) residue from the waste scrubber system (27,000 tonnes per year at 0.47 Bq/g)
•    The NUF (Neutralization Underflow) residue from the HDS treatment system (85,300 tonnes per year at 0.25 Bq/g).

Over a 10-year period of the plant’s operation the total volume of wastes will amount to 2,766,600 cubic meters (EIA, Table 5.51, pp5-54). Over a 20-year period, presumably double the amount.  It is inconceivable that there will be enough soil and technology available to ‘dilute’ the wastes and remove its radiation level to natural ground level radiation. This is especially crucial as Lynas plans to store the wastes onsite in the Residue Storage Facility (RSF).

Moreover, WLP wastes contain 5.91 Bq/g of Th-232 and 0.23 Bq/g of U-238.
Th-232 has a half-life of 14 billion years and the LAMP is projected to generate 1,248,000 tonnes of WLP over a 20 year operating life, as stated in the RWMP report itself (RWMP, Document 2, pp 52-56).

AELB needs to explain which IAEA standards it has used for the radioactive wastes classification. It would appear that earlier categories from IAEA’s 1994 classification were used despite the fact that IAEA has since improved its safety classification.

AELB needs to explain the scientific and technical basis of the various cut-off points for its Cleared Wastes category. More importantly AELB must use the internationally accepted standards for exemption e.g. based on IAEA GSG-1 (which limits individual effective exposure to less than 10uSv and should not exceed 1mSv in a year) or even better. Or have a look at how UK did theirs.  Instead of using internationally accepted standards, is AELB arbitrarily concocting its own? AELB needs to come clear on this.

4.    RWMP did NOT include Decommissioning and Cessation

According to the Lynas document under review, ‘the Management of Radioactive Residue generated from decommissioning activities of the LAMP upon cessation of operations after 20 years are not within the Scope of this RWMP but presented in a separate document entitled “Decommissioning Plan (ENVIRON 2011b)”.’

The above statement i.e. that the decommissioning and cessation is not within the scope of a comprehensive radioactive waste management plan flies in the face of international standards. The IAEA’s GSG-1 Fundamental Safety Principles (Fig. 1) list out seven General Safety Requirements, of which Part 6 is on ‘Decommissioning and Termination of Activities’.  

According to IAEA, the ‘Safety Requirements establishes the requirements that must be met to ensure the protection of people and the environment, both now and in the future’. Thus ‘Decommissioning and Termination of Activities’ must be part and parcel of a national regulatory framework and the government is responsible to ensure that this is fulfilled. This is in line with international good practices reflecting best practices to achieve high levels of safety.

Why is the report ‘Decommissioning Plan for the Advanced Materials Plant, Gebeng Industrial Estate, Kuantan.’ by the consultancy firm for Lynas i.e. ENVIRON (2011) not included? After a 20-year operation period, the amount of wastes would be considerable and this will affect any decision now whether to permit Lynas to begin its operation. This makes the Decommissioning and Cessation plan imperative. Again Lynas has not complied with full information and public disclosure. Moreover, for Lynas to state that decommissioning activities of the LAMP is not within the scope of the RWMP is totally unacceptable.

Thus, the public review process of an incomplete RWMP is totally meaningless.

5.    Permanent Disposal Facility (PDF) not indentified

According to the Lynas RWMP document under current public review, ‘….. upon plant closure after 20 years, any remaining residue within the RSF will be transported off site to a permanent disposal facility (PDF) for long term storage. At the time of report preparation (December 2011), the proposed site for the PDF had not been identified’.

This was publicly affirmed by Lynas managing director Datuk Mashal Ahmad when he said that a PDF will be needed in a ‘worst case scenario’ where it is unable to reprocess the waste into a commercial product. According to him ‘we have 17 years before we even need to identify where is the PDF … we are working on commercial applications … Once we find all this, we can even forget about a RSF (Residue Storage Facility)’.

He said the PDF only came about during the IAEA expert review of the Lynas project in June2011. ‘Why did the PDF come about? It is because the IAEA said ‘very good but tell us the worst case scenario. That is why this topic came about. Not because Lynas doesn’t know what to do’, he added.

Note that the storage capacity for the RSF is for five years only (RWMP, p5); whereas Datuk Mashal says the RSF is only for 1.5 years of operation ‘because of the high level of confidence in finding the solution’. Given the huge volumes of wastes that will be generated, the need of a PDF is absolutely fundamental. This is all the more crucial when the RSF caters for a storage capacity of only one and a half years to five years. What are the concrete plans for storage of the radioactive wastes when the RSF reaches full capacity? What is going to happen to the wastes after 20 years when Lynas folds up?

Note that the final wastes product as mentioned earlier contains ultrahazardous thorium, uranium, etc. The sheer volume of these radioactive materials built up over time adds on to the background level of radiation. This will increase the concentration and radiotoxicity levels.

Note that the wastes in the Bukit Merah rare earth plant 20 years ago is still being cleared up at the cost of over RM300 million with lives lost and children maimed. Being the largest rare earths processing plant in the world, Lynas’ capacity to generate wastes is said to be ten times as much as the Bukit Merah plant in Perak.

Using IAEA yardstick for comparison, Lynas compares this PDF wastes with that of a natural uranium ore body and wastes from a uranium mill. Malaysia does not have uranium outcrops or uranium mills. Having these ultrahazardous wastes amounts to adding a foreign hazard to the environment. Please note that WLP wastes contain 5.91 Bq/g of Th-232 and 0.23 Bq/g of U-238. Th-232 has a half-life of 14 billion years and the LAMP is projected to generate 1,248,000 tonnes of WLP over a 20 year operating life, as stated in the RWMP report itself (RWMP, Document 2, pp52-56).

The RWMP foresees the possibility that the FGD and NUF radioactive wastes will be exempted from regulation by the AELB and be treated as classified scheduled wastes under the purview of the Environmental Quality Act 1974 (EQA 1974) and its subsidiary regulations which will be enforced by the Department of Environment (DOE), Ministry of Natural Resources and Environment. However, DOE list of Scheduled Wastes Schedule 1 of the Environmental Quality (Schedule Waste) Regulations, 2005 deals specifically with heavy metals wastes from batteries; from iron and steel factories; from metal processing e.g. zinc and copper; oily sludge; tar residues from oil refinery and petrochemical plants; acid wastes; clinical wastes and pharmaceutical wastes; wastes containing dioxins or furans; contamination of soil and debris from cleaning up chemical, oil, mineral spills; wastes from the production of pesticides, biocides; and other chemicals. The DOE scheduled wastes list has no category for the kind of wastes that Lynas is producing i.e. radioactive wastes containing Uranium and Thorium.

For public safety purposes, it is crucial that the onsite and offsite wastes disposal areas be known. What happens if there is no suitable site to be found later to hold the massive amounts of radioactive wastes, especially the WLP wastes? Risk management requires anticipating the unexpected which can have major repercussions. Planning for such ‘black swan events’ is in line with the Precautionary Principle.

6.    Confusion between Baseline data for Malaysia vs. for Gebeng

According to the baseline background readings as published in year 2000 by UNSCEAR, Malaysia’s ‘baseline level’ is 0.051 uSv/j or uSv/hour (AELB Data monitoring document, AELB website). The location/s of the UNSCEAR baseline reading is not mentioned, presumably the data was not specifically measured in the Gebeng area.

It is highly important to note that the UNSCEAR baseline background data for Malaysia is NOT the baseline background reading for Gebeng.

The AELB cited the UNSCEAR (2000) readings and compared the Malaysian baseline readings to other countries and found the Malaysian value to be slightly higher (albeit with a correction announced by AELB due to its mistake in value conversion in an earlier report):
Malaysia= 0.051 μSv/j or μSv/hour
Thailand = 0.043 μSv/j
China = 0.035 μSv/j
Filipina/ Indonesia =0.031 μSv/j

In the AELB report, in its conclusion section, it cited UNSCEAR (2000) readings in a different unit:
Malaysia iaitu 0.45 mSv/thn or mSv/year
Thailand (0.38 mSv/thn)
China (0.31 mSv/thn)
Filipina/Indonesia (0.27 mSv/thn)

However, in 2011 when the AELB (Atomic Energy Licensing Board) conducted measurements for a short 4-month period (August – November 2011) for the Gebeng Industrial area and Kuantan, AELB claims that its readings (e.g. August – November is ca. 0.2 uSv/hour) is four times higher than the UNSCEAR (2000) ‘background radiation’ in Malaysia which is 0.051 uSv/hour.

Note that AELB’s mistake in basic conversion of units casts a huge doubt on its technical competency. Moreover, AELB did not provide technical specifications of the instruments it used for measuring the readings. It is basic requirement in basic scientific reporting (even in university students’ reports) to indicate basic technical specifications of instruments used.

What is even more perturbing is that AELB baseline monitoring report fails to cite other sources of baseline readings specifically done for Gebeng area. For example, the Malaysian Nuclear Agency (MNA) already made baseline readings specifically at the Lynas area in 2008.  

Scientifically, this MNA data (February – December 2008)  is to be considered the baseline data for the Lynas and Gebeng area – if there are no earlier readings done for the area. However, before the other existing industries began operating at Gebeng, it is logical to assume that even earlier readings were made for their legally-required EIAs and RIAs at Gebeng.

When AELB already admitted to making mistakes in its conversion units earlier, perhaps it has done another similar mistake here? In addition, the fact that AELB did not cite earlier background radiation measurements (e.g. MNA values measured in 2008) specific for Lynas/Gebeng area already cast doubts on AELB’s technical scientific competency.

If AELB claims that the background radiation reading is already high in Gebeng, it is the more reason not to increase radiation here. This supports the argument that radiation levels should not be increased by activities such as Lynas that will generate massive amounts of radioactive wastes and radioactive toxicity.

7.    AELB has no legal provision for public review?

In a public reply to CAP and SAM, on 18 January MOSTI/AELB admits that the Atomic Energy Licensing Act (Act 304) does not provide the legal provision for public consultation or display in such situation. It further states that the application documents for the temporary operating licence (TOL) for Lynas’ are copyrighted documents that legally belong to Lynas. This reveals that AELB in effect has no power to fulfill fundamental safety issues and safeguard public health and safety. This is utterly shocking, a regulatory agency that is supposed to look after public health and other important obligations have no legal provisions for public information and review process. AELB also cannot ensure compliance, due diligence and international best practices in carrying out its functions.

On 17 January, AELB announced that the public viewing will be extended until 24 January. After realising that the extension period will be public holidays in view of the Chinese New Year holidays and all offices and workplaces will be closed, AELB announced on MOSTI website that the extension period will be until 26 January. This latest extension notice did not appear in the printed media or online. The entire public relations exercise reflects an ad hoc approach, poor planning, non transparent, non independent, capricious behaviour which is clearly unreasonable and unprofessional.

This being the case, AELB has failed to adhere to international standards and practices in carrying out its duties. It has no capacity and competency to regulate Lynas.

Conclusion

Despite the time-constraint due to the extraordinarily limited duration of the public review duration,  CAP-SAM analyses as listed above demonstrates that the Lynas Radioactive Waste Management Plan (RWMP)  and Safety Case for Radioactive Wastes Disposal are totally inadequate and not up to an acceptable international standard.

The RWMP is inherently flawed, makes the public review process meaningless and invalidates the RWMP as an expert document. The AELB’s competency to regulate such activities also is questionable.

In conclusion, Lynas should not be given a temporary operation licence or otherwise.
 

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The feedback form provided by MOSTI-AELB is half-A4 size. Notice the minute amount of space allotted for the comment and suggestion columns.

 

APPENDIX 1

11th January 2012

AELB not adhering to IAEA recommendations on Lynas

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.

Conclusion

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.

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