UK: A Long-Term Solution To The UK’s Nuclear Waste Management Problem – The Geological Disposal Facility

Introduction

For nearly four decades, the UK Government has been seeking a long-term management solution for the UK's high and intermediate level radioactive waste ('HLW'/'ILW'). DECC have chosen the method of geological disposal and have started a site selection process, but in January 2013, after reaching Stage 3 of the process, Cumbria County Council rejected further proposals for hosting a Geological Disposal Facility.

Re-consulting on site selection

After Cumbria County Council rejected the government's proposals, the government launched a new review of the site selection process. They recognised Cumbria's concerns over community benefits and that they had not provided clarity on the amounts of community benefits available. They also recognised that the first release of community benefits comes too late in the current process, the mechanism for delivering community benefits is unclear and given the very long duration of the project, confidence in the long-term delivery of benefits is low, with promises of payment in many decades' time being neither meaningful nor credible. In its review, the government attempts to set out its amended approach to community benefits. It claims it will make clear, early in a revised siting process, the potential scale of community benefits. This may be seen by some to be still too vague and may not assure local communities. The government also announced that it would create a community fund, into which it would begin paying during the 'Focussing' phase. This, the government claims, would create a lasting commitment to support the community through future generations.

The government announced that they were re-opening the consultation on the site selection process of the GDF and the representations made during this consultation were published in February 2014. The majority of respondents disagreed with the government's proposed approach on community benefits. Many respondents asked for further clarity on the mechanism for disbursement of funds, what they were for and who would benefit and on the actual types and scale of benefit available. There was support for the community fund proposed by the government but this came with concern over the suggestion that the government could retrieve funds should the community withdraw from the process.

The Geological Disposal Facility as a Nationally Significant Infrastructure Project

In 2013, the government was under pressure to clarify how the planning of the GDF would be carried out. The two major options were to carry out the planning process via the Local Planning Authority regime, with the County Council deciding the grant of planning permission, or to use the new Nationally Significant Infrastructure Projects ('NSIPs') regime, introduced by the Planning Act 2008 ('the Act').

The Act was introduced to streamline the process of consenting infrastructure projects and defines a new category of NSIPs which require the grant of a Development Consent Order ('DCO') from the government, based on the recommendation of the Planning Inspectorate ('PINS'), rather than via the 'local planning' regime. A developer can also seek to apply for various other consents to be included within the DCO; condensing multiple applications into one.

In the 'Review of the Siting Process for a GDF', published in September 2013, the government confirmed that they intend to seek development consent for the GDF through the NSIP regime. The rationale behind this decision was that a GDF "is clearly an infrastructure development on a major scale, and of national significance" and "the fact that the final decision is made by the Secretary of State maintains democratic accountability".

The new regime for delivering NSIPs has numerous advantages. The new process creates certainty in terms of process requirements and decision time limits. For the purposes of the DCO, the developer will be Radioactive Waste Management Limited, a wholly-owned subsidiary of the Nuclear Decommissioning Authority set up to be responsible for delivering a GDF, obtaining the relevant planning and environmental permissions and a nuclear site licence.

Is DCO the right way to go?

Although the new infrastructure planning regime has many advantages, its application in relation to the GDF has so far been plagued with problems. It has alienated and disenfranchised local communities and a solid plan has not yet been formulated. Should the government take the decision making process back to the local community? The town and country planning concept of planning inquiry commissions is little known but it provides the perfect opportunity for the local community to get involved in the decision making process, rather than having Westminster decide.

Section 101 of the Town and Country Planning Act 1990 allows the Secretary of State to set up a Planning Inquiry Commission to determine whether the proposed development should be permitted, where there are considerations of national or regional importance which are relevant to the determination of that question and require evaluation, but a proper evaluation of them cannot be made unless there is a special inquiry for the purpose; and/or the technical or scientific aspects of the proposed development are of so unfamiliar a character as to jeopardise a proper determination of that question unless there is a special inquiry for the purpose.

This process was first established in the Town and Country Planning Act 1968 but has never previously been used for infrastructure projects. Should now be the time to use it? It has been envisaged that the Planning Inquiry Commission will first operate as an investigation in depth and then as a local inquiry. This would allow the decision-making process to be carried out in the local community thus allowing residents and other interested parties the chance to witness the inquiry and provide representations. The legislation also allows the commission to decide whether the development should be carried out at an alternative site. Providing several local communities express an interest in hosting a GDF and these communities are found to be suitable, a planning inquiry commission may be able to reject the proposed site and allow development on another.

Conclusion

DECC's approach when working with Cumbria failed to fully engage the wider community and failed to address critical community benefits issues such as: scale; scope and timing causing lack of trust. The European precedent and the HS2 debacle demonstrate the need for host communities to be given meaningful and early engagement with such engagement detailing the community benefits on offer. In our view, DECC's approach post Cumbria rejection has failed to recognise the County Council's concerns and failed to address the fundamental issues relating to scale, scope and timing of community benefits. Further clarification is needed on the full scale of community benefits and when they will begin to be seen by local communities, to engage trust and further participation in the siting and decision-making process.

This article formed the basis of a speech given by Victoria Longmore, Assistant Solicitor, at the 5th Annual Nuclear Decommissioning Conference in Manchester on 7th May 2014. An enhanced version of this article will also feature in the July/August 2014 issue of Nuclear Future.

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