17.11.2016

Australia has long debated the notion that it could be a significant repository for the warehousing and containment of the world’s nuclear waste. That possibility has re-emerged, with the State Government of South Australia again considering a proposal to build a nuclear waste disposal facility in its remote desert environs.

The proposal follows from recommendations contained in a report of the Nuclear Fuel Cycle Royal Commission (“the Report”) handed down by Commissioner Kevin J Scarce in early May 2016. The Report concluded that South Australia could safely increase its participation in nuclear activities. Amongst its 12 separate recommendations, the Report found that South Australia should build a facility to store international nuclear fuel (high-level) and intermediate-level nuclear waste.

It found that the State “has the necessary attributes and capabilities to develop a world-class waste disposal facility, and to do so safely.” The facility would accept both international and domestic nuclear waste, with the implication being that the facility would be one of the first, if not the world’s first commercial nuclear waste importation business.

A long history of talk but with little “legal” support

South Australia’s proposal to encourage the world to export its high-level nuclear waste to Australia is in stark contrast to the previous positions of both the Federal and South Australian Governments. Moreover, significant reform to State laws and to existing Federal practice would be required to facilitate the proposal, none of which has been formulated.

In 1998, the responsible Federal Minister condemned a recommendation by nuclear waste management consortium Pangea Resources for a repository for international high-level nuclear waste in the Western Australian outback. He reiterated Australia’s long-standing bipartisan opposition to such a development:

…no high level radioactive waste facility is planned for Australia and the government has absolutely no intention of accepting the radioactive waste of other countries. The policy is clear and absolute and will not be changed. We will not be accepting radioactive waste from other countries.1

After only cursory consideration of the repository idea in 1998, Western Australia actually went the other way, passing a law to make it illegal to establish a nuclear waste storage facility in the State, or to use any part of the State to store or dispose of nuclear waste, or to even transport nuclear waste in the State.2

Other Australian states – New South Wales;3 Queensland;4 Victoria;5 and South Australia6 – have enacted similar legislation either completely prohibiting a nuclear waste facility in their jurisdiction or making it necessary to seek certain approvals to build one. These legislative constraints would first need to be addressed before any facility were to be capable of being built in any of those States.

At a Federal level, a nuclear waste facility is not prohibited, however the statute responsible for creating the Australian Radiation Protection and Nuclear Safety Agency (“ARPANSA”) also places a blanket ban the construction of nuclear fuel fabrication plants, power plants, enrichment plants and reprocessing facilities.

ARPANSA can permit imports of radioactive waste

Despite the above State prohibitions on the building of nuclear waste facilities and on the transportation of nuclear waste, no absolute prohibition applies to the importation of radioactive waste into Australia. Regulation 4R of the Customs (Prohibited Imports) Regulations 1956 (“the Regulations”) stipulates that radioactive substances can be imported into Australia, but only if permission has been granted by the Customs Minister or an authorised officer, such as the CEO of ARPANSA.7

ARPANSA administers Australia’s rights and obligations under a number of specific international treaties, with the most relevant to radioactive waste disposal and storage being the International Atomic Energy Agency’s (“IAEA”) Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (“the Joint Convention”) which was ratified by Australia in 2003.

The discretion under regulation 4R of the Regulations to approve radioactive imports has rarely been afforded with respect to radioactive waste and never on a premise of the commercial disposal of international nuclear waste. ARPANSA officials readily advise interested parties that “current Commonwealth Government policy prohibits importation of spent nuclear fuel or radioactive waste of foreign origin into Australia”.

The international framework

The Joint Convention enforces a commitment to achieving and maintaining a consistently high-level of safety in the management, transboundary movement and disposal of spent fuel and radioactive waste. The Joint Convention notes:

… radioactive waste should, as far as is compatible with the safety of the management of such material, be disposed of in the State in which it was generated, whilst recognizing that, in certain circumstances, safe and efficient management of spent fuel and radioactive waste might be fostered through agreements among [the] Parties to use facilities in one of them for the benefit of the other Parties, particularly where waste originates from joint projects8

These principles are also recognised in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, to which Australia is also a party.9 The Joint Convention also recognises that any state has the right to ban import into its territory of foreign spent fuel and radioactive waste.10

Additionally, just as Australia exports unspent nuclear material, being uranium, to foreign countries under safeguards, countries like Canada do too. Those safeguards are essentially accounting and inspection procedures designed to ensure that neither the uranium nor any by-product of it (such as plutonium) could be used to contribute to the construction of a weapon. Bodies such as the IAEA and the Australian Safeguards and Non-Proliferation Office (an office within the Australian Department of Foreign Affairs and Trade) track exported nuclear material through its whole lifecycle, all the way through to the spent fuel and the reprocessing and/or the recycling of that fuel.

Any facility that were to accept international nuclear waste could also expect to be subject to scrutiny against the Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”). The overall quality and security of any nuclear waste disposal facility, as well the country that hosts it, need to satisfy extremely high domestic and international standards to be commercially – and politically – viable.

By virtue of both the Joint Convention and the NPT, Australia would need to establish treaties with overseas governments interested in disposing their nuclear waste in the facility, to specify the arrangements that would be put in place for the management of nuclear waste. Australia may also be obliged to seek evidence of “upstream” agreements in circumstances where the original nuclear product and/or the waste has moved between third party countries before its exportation to Australia.

Radioactive waste storage – business fantasy or political possibility?

In making its recommendations, the Report states:

… the Commission deliberately took a cautious and conservative approach to assessing used fuel inventories and potential global interest in international used fuel disposal. Based on those inputs, the Commission determined that a waste disposal facility could generate $51 billion during its operation (discounted at the rate of 4 per cent). Further analysis indicated that by accumulating all operating profits… and annually reinvesting half the interest generated, a fund of $445 billion could be generated over 70 years (in current dollar terms).11

Is it crude to suggest that the commerce is the politics, pure and simple? That there are 445 billion economic reasons to consider this seriously, and that little else matters? That is no doubt enticing in a purely commercial sense, however the policy issues go much deeper than that.

Encouraging a dialogue on nuclear waste management is a lead-in to a wider discussion about the generation of nuclear power and its implications for Australia in terms of international security and sustainability. It opens up new options for combatting climate change, being options that are more efficient than renewable options. The establishment of a nuclear waste facility would inevitably encourage the development of a nuclear energy industry. This would attract investment in hard infrastructure; in mining, service industries and advanced manufacturing; and in the intellectual capability to make it work, such as the education needed to train-up a skilled workforce with a strong focus on health and safety.

ARPANSA and the Australian Government are no doubt also alive to the international security angle of these proposals, and particularly the elevation of Australia’s importance in world non-proliferation. As the world’s third largest producer of uranium and a formidable exporter, the idea makes sense in terms of the international treaty framework. At the international level it has been recognised that “establishing multinational and international repositories should be elaborated” to enhance non-proliferation. According to the one-time Director-General of the IAEA, Dr Mohamed El Baradei:

… we should consider multinational approaches to the management and disposal of spent fuel and radioactive waste. More than 50 countries have spent fuel stored in temporary sites, awaiting reprocessing or disposal. Not all countries have the right geology to store waste underground and, for many countries with small nuclear programmes for electricity generation or for research, the costs of such a facility are prohibitive. Considerable advantages – in cost, safety, security and non-proliferation – would be gained from international co-operation in these stages of the nuclear fuel cycle. These initiatives would not simply add more non-proliferation controls, to limit access to weapon-usable nuclear material; they would also provide access to the benefits of nuclear technology for more people in more countries.12

Nuclear waste storage would also be likely to enhance Australia’s role as an “honest broker” in the world’s usage of uranium. Our biggest trade partner, China, is the fourth largest generator of nuclear power behind the US, France and Russia, and has more than twenty new generator projects presently under construction. If Australia does set itself up as a repository of nuclear waste from China we could expect to see an improved security understanding between the two countries, and an enhancement of Australia’s importance under the ANZUS Treaty and in the Pacific more broadly.

A proposal with an uncertain half-life

Despite the security and economic attractions of nuclear power it is a subject that is as politically dangerous as the A-bomb itself. The prospect that Australia will build a nuclear waste disposal facility capable of accepting international and domestic waste will bring these conflicting interests and concerns back to the surface. The political and legal landscape will be difficult to traverse, and how the nascent Australian nuclear industry intends to position itself for serious investment and safe operation remains unclear.

This article was originally published in WorldECR – The Journal of Export Controls and Sanctions (November 2016 issue), available at www.worldecr.com.

Moulis Legal represents major national and international corporations and their governments in the law and policy of international trade and investment. Our team has acted in cross-border matters relating to traditional and renewable energy, hazardous products and environmental remediation. Principal Partner Daniel Moulis was lead counsel for the US corporation responsible for the in-situ vitrification of the Taranaki pits at the Maralinga nuclear test site.

For more information, please contact Alistair Bridges on +61 3 8459 2276 or alistair.bridges@moulislegal.com.

This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.

[1] Commonwealth, Parliamentary Debates, Senate, 1 December 1998, 952 (Nicholas Minchin, Minister for Industry, Science and Resources); Matthew James and Ann Rann, ‘Radioactive waste and spent nuclear fuel management in Australia’ (Background Note, Parliamentary Library, Parliament of Australia, 2011), Chronology.

[2] World Nuclear Association, International Nuclear Waste Disposal Concepts (May 2016) http://www.world-nuclear.org/information-library/nuclear-fuel-cycle/nuclear-wastes/international-nuclear-waste-disposal-concepts.aspx.

[3] Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW) s 8.

[4] Nuclear Facilities Prohibition Act 2007 (Qld) s 7.

[5] Nuclear Activities (Prohibitions) Act 1983 (Vic) s 9.

[6] Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA) s 8.

[7] Customs (Prohibited Imports) Regulations 1956 (Cth) reg 4R.

[8] Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, opened for signature 29 September 1997, INFCIRC/546 (entered into force 24 December 1997), preamble para xi.

[9] Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, opened for signature 22 March 1989 (entered into force 1992).

[10] Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, opened for signature 29 September 1997, INFCIRC/546 (entered into force 24 December 1997), preamble para xii.

[11] South Australia, Nuclear Fuel Cycle Royal Commission, Nuclear Fuel Cycle Royal Commission Report (2016) xv.

[12] Mohamed ElBaradei, Towards a Safer World (16 October 2003) International Atomic Energy Agency https://www.iaea.org/newscenter/statements/towards-safer-world.