A Review of the Application of 'Best Practicable Means' within a Regulatory Framework for Managing Radioactive Wastes
This report represents the outcome of a project whose final aims were (i) to clarify how the UK environment agencies (the ‘Agencies’) interpret best practicable means (BPM) as applied to the control of radioactive substances, and (ii) to develop advice which Agency staff could use when assessing an operator’s application of BPM when carrying out their functions under the Radioactive Substances Act (RSA’93). The project elicited comment by means of an extensive consultation exercise that involved Agency staff and operators of nuclear licensed and the so-called non-nuclear sites, UK Government departments and agencies, all of whom were asked to contribute their views on the application of BPM and its position within a regulatory framework aimed at protecting the public and the environment.
The output of this work is this stand alone report that sets out the regulatory framework, as of August 2004, under which Agency staff assess BPM in relation to airborne, liquid and solid radioactive wastes. The advice about BPM assessment given in this report is applicable to nuclear licensed sites (both operational and those being decommissioned) and non-nuclear sites for which authorisations under RSA’93 are granted (e.g. hospitals, universities, industrial premises). It would apply both to existing and proposed new plant, equipment and operations on these sites.
This report describes BPM and its application to optimise control over radioactive substances. At the current time, the requirement to use BPM is transposed as conditions and limitations included in registrations and authorisations granted by the Agencies under RSA’93, in line with radioactive waste management policy set out in Cm 2919. Through these conditions and limitations, the Agencies require operators to apply BPM so as to minimise the volumes and activities of radioactive wastes that are generated and have to be discharged to the environment, and to reduce the impacts of waste management on people and the environment. The use of BPM is of increasing importance as it is a key mechanism to achieve the Government policy aim of progressive reductions in radioactive discharges into the marine environment.
Fundamental to the control over radioactive substances is a statutory requirement placed on the Agencies to ensure that exposures of members of the public and the population as a whole resulting from the disposal of radioactive waste are kept ‘as low as reasonably achievable’ (ALARA). There is, however, some confusion as to how the Agencies should apply Government policy. The draft DETR guidance issued to the Environment Agency states that “BPM should be used to ensure discharges are ALARA”. This statement is not wholly consistent with the Government’s view set out in the most recent policy paper (Cm 5552), which states that “if the operator is using BPM, radiation risks to the public and the environment will be ALARA”. This later policy statement infers that BPM applies to discharges whereas ALARA applies to dose. ALARA stems from the three ICRP’60 basic principles of (i) justification of a practice, (ii) optimisation of protection, and (iii) individual dose and risk limits. Thus, similar to ALARA, BPM is considered by the Agencies as an optimisation principle. Whereas ALARA applies to dose optimisation, BPM applies to optimise radioactive waste management.
The Agencies view BPM as a means of engendering a culture of environmental protection with respect to the management of radioactive substances. In all cases, Agencies will seek to ensure that BPM is applied throughout the waste hierarchy, so that it is applied to such aspects as minimising waste creation and ensuring that options for recycling and re-use have been given preference over options for disposal. The concept of BPM should not, therefore, be viewed solely in terms of ‘end of pipe’ discharges.
Using BPM to optimise radioactive waste management is inherently difficult and is a balancing process that has to take cognisance of a variety of inputs including ethical, social, economic and scientific considerations. Thus, the process involved can sometimes mean making difficult decisions, both by site operators and the Agencies. Any such decisions have to meet the requirements of the law, whilst allowing the use of judgment by the Agencies and flexibility for site operators. At the same time, decisions must reflect the values of society at large on the acceptability of different types and levels of risk.
As a matter of principle, the Agencies define no lower threshold of dose or environmental contamination below which BPM does not apply. Operators are thus required to minimise discharges to the point to which it would not be sensible to reduce them any further, whilst taking into account factors such as cost-effectiveness, technological status, operational safety and social and environmental factors. This concept, referred to as proportionality, is thus fundamental to the assessment of what constitutes BPM. The Agencies apply this concept by ensuring that operators do not expend effort, whether in time, trouble or money, that would be grossly disproportionate to the resulting benefits (e.g. reduction in discharges, environmental protection, reduction in radiological dose etc). Put simply, BPM requires site operators to ensure that the measures in place to manage radioactive wastes are not unreasonably costly.
In all cases, however, the onus is on the site operator to implement measures to the point where the costs of any further measures would be grossly disproportionate to the risks they would reduce or avert. The essence of a demonstration that BPM applies is to show that the costs of further control over radioactive substances would be grossly disproportionate to the benefits that would result from implementing further options or change to the status quo.
There are, however, no quantitative limits on what is or is not grossly disproportionate and, as a result, a certain amount of judgement and discretion must be exercised by both operators and Agency staff when determining what are BPM for a site or process. The possibility of defining numerical criteria for the evaluation of what is or is not proportional was discussed during the consultation but it was generally acknowledged that it would be difficult, if not impossible, to reach agreement on a single set of numerical criteria that would be appropriate for all sites. In the absence of numerical criteria, guidelines are set out in this report for use by those faced with proportionality considerations and when deciding upon what constitutes BPM when different options provide for differing levels of environmental impacts at differing costs.
For existing plant and processes, the Agencies will require the operator to make progressive improvements in waste management methods, reductions in discharges and in the production and disposal of other radioactive waste. The standard conditions and limitations in authorisations require the application of BPM on a continuing day-to-day basis and require the site operator to demonstrate compliance with the conditions and limitations. A BPM study for an existing practice should, thus, involve the site operator evaluating the control measures currently in place for managing radioactive substances and assessing whether the existing control measures are sufficient or what more should be done. This ought to consider a number of approaches and options to identify which is the optimum control solution and making this assessment transparent.
In the case of proposed new plant or process, operators should be encouraged to discuss their plans with the Agencies at an early stage. Doing so should help streamline the BPM process, and minimise the financial and project risk to the operator of failing to gain regulatory support for their plans. As part of these discussions, the Agencies may require the operator to submit a BPM study to them for assessment in advance of the plant or process being commissioned. For significant new developments, Agency staff may require that a BPM study is undertaken at the conceptual design stage and they may also wish to be consulted on the scope and factors to be considered in that study. In most cases on a nuclear licensed site, the BPM study will follow a Best Practicable Environmental Option (BPEO) study that defines the strategic waste management approach the operator wishes to adopt. This will not be the case at non-nuclear sites where there is no BPEO requirement.
For the Agencies, assessing an operator’s BPM study is essentially a consideration of whether an adequate argument has been made that further measures to reduce risk (or implement more control measures) is not needed because these measures cannot be implemented at a reasonable cost given the economic and social factors to be taken into consideration. Should the Agencies conclude that an operator has not been or is not using BPM, then the matter may be referred by the Agencies to the appropriate authority with a view to bringing a prosecution against the operator for failing to observe a condition or limitation of the authorisation. Should such a matter reach the courts it would be for the court to decide what constituted BPM for any given process at a particular time and whether it was in fact being observed. There is very limited case law on which to base a judgement on what is or is not proportional but the Agencies have developed views as to what is legally required from site operators.
The report looks across at other related environmental protection concepts, particularly BPEO and Best Available Techniques (BAT). There is sometimes confusion between BPM and BPEO but they are intended to be applied in fundamentally different ways. Whereas BPEO looks at assessing the best strategic option to apply to managing radioactive wastes, BPM relates to how to optimise the selected option from the perspective of radiological protection. Put colloquially, BPEO is about doing the right thing and BPM is about doing it the right way. In contrast, BAT is applied by the Agencies for the management of non-radioactive pollutants under Integrated Pollution Control (IPC) legislation. The Agencies view is, however, that BPM and BAT are synonymous, both having the aim of balancing costs against environmental benefits by means of a logical and transparent approach to identifying and selecting processes, operations and management systems to reduce discharges.
Based on the outcome of the consultation processes and other work undertaken as part of this project, this report provides advice to Agency staff that may be useful when assessing an operator’s implementation of BPM. This advice will be trialled in a ‘learning network’ over a period of around 12 months during which time Agency staff will be asked to use this advice as part of their regular inspection activities and operators making a BPM study will be invited to refer to the report and feedback their comments. All observations, experiences and comments from Agency staff and operators on the advice will be collated and subsequently used to develop a formal assessment framework and, possibly, a guidance manual at a later date.
A number of issues arose during this project that could not be resolved in this report, particular with regards to the harmonisation of environmental regulation, health and safety of workers, and the development and application of generic BPM studies. As part of the learning network, Agency staff and operators are encouraged to comment on these and any other issues that may require further analysis before a formal guidance manual could be issued.
Key words: best practicable means, radioactive waste, radioactive discharges, environmental legislation, environmental protection.
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N.B. The report is available for download from the SNIFFER Website