The Energy Act 2023 – changes to the regulation of radioactive waste disposal

The changes made to the Nuclear Installations Act 1965 (NIA 1965) reflect an international agreement reached in 2016 but, while welcome, add further complexity to the legal framework governing radioactive waste disposal and the associated liability regime.

The Energy Act 2023 in brief

The Energy Act 2023 received Royal Assent late last month. It is a wide-ranging piece of legislation.

While the Act’s primary purpose is to facilitate long-term energy security in Britain and the UK’s transition to a ‘net zero’ energy system, it also includes provisions relating to the regulation of sites for the disposal of certain radioactive wastes.

Those new rules amend the NIA 1965 and make specific provision about when certain radioactive waste disposal facilities may be excluded from the strict requirements of the nuclear third party liability (NTPL) regime.

NTPL – the international picture

International NTPL regimes are established by treaties concluded under the auspices of both the Organisation for Economic Co-operation and Development (OECD) and the United Nations’ International Atomic Energy Agency. The international regimes have at their core the aim of ensuring that adequate and fair compensation is available for victims who suffer certain harm or damage as a result of a nuclear incident at a nuclear installation or during the transport of nuclear substances.

At international level, the UK is a contracting party to:

• the OECD Paris Convention on Third Party Liability in the Field of Nuclear Energy, dated 29 July 1960 (the Paris Convention); and
• the OECD Brussels Supplementary Convention on Third Party Liability in the Field of Nuclear Energy, dated 3 January 1963 (the Brussels Convention).

Extensive amendments to the Paris and Brussels Conventions were agreed in 2004, although these amendments only came into force on 1 January 2022 when the 2004 Protocols were ratified by two-thirds of contracting parties to the Paris and Brussels Conventions.

Under the amended Paris and Brussels Conventions, the operator of a UK nuclear installation is exclusively liable for certain damage resulting from a nuclear incident, or occurring during the transport of nuclear substances. This liability is channelled directly to the operator of the relevant installation and is strict, so the operator will be liable for specified damage irrespective of fault.

The operator is liable only for certain ‘heads’ of damage, broadly:

• loss of life or personal injury;
• loss of or damage to property (subject to certain exceptions, such as damage to the nuclear installation itself);
• economic loss arising from loss of life or personal injury and loss of or damage to property;
• the costs of measures of reinstatement of impaired environment;
• loss of income deriving from a direct economic interest in any use or enjoyment of the environment; and
• the costs of preventive measures, and further loss or damage caused by such measures.

The minimum financial liability of the operator is €700 million per incident, although lower limits may be fixed for transport activities and low-risk installations, and the operator is required to provide financial security equivalent to the requisite level of liability. The maximum operator liability is €1.2 billion per incident.

Installations for the disposal of radioactive waste are covered by the amended Paris and Brussels Conventions.

NTPL – the UK picture

The Paris and Brussels Conventions are implemented in the UK by the Nuclear Installations Act 1965 (NIA 1965). The NIA 1965 establishes the legislative framework for nuclear third-party liability in the UK and sets out, in particular, provisions relating to nuclear site licensing, operator liability and financial provision, and the process for claims under the UK domestic NTPL regime.

The NIA 1965 was amended in January 2022 to reflect the changes to the Paris and Brussels Conventions agreed in 2004. Installations for the disposal of radioactive substances were brought within the scope of the UK NTPL regime at this point.

Radioactive waste disposal sites are not prescribed sites for the purposes of the NIA 1965 but are nevertheless subject to the requirements of the UK NTPL regime. This gives them the unique hybrid status under UK law of being subject to the requirements of the NTPL regime, but not licensable under the UK’s nuclear site licensing regime.

Radioactive waste disposal sites are, however, subject to the environmental permitting regime  and, as such, are required to hold an environmental permit which authorises the disposal of radioactive waste at the site Regulatory oversight of the installation will be provided by the relevant environmental regulatory body.

How the new Energy Act 2023 changes things

In November 2016, the Steering Committee of the Paris and Brussels Conventions adopted a decision which allowed a contracting party to those conventions, such as the UK, to exclude installations for the disposal of low level radioactive waste – solid low level waste and very low level waste only – from the NTPL regime, provided that the disposal site meets certain conditions. The Energy Act 2023 formally reflects the 2016 Steering Committee decision in UK law through further amendments to the NIA65.

The effect of the most recent changes is that, going forwards, a UK site for the disposal of low level radioactive waste may be excluded from the UK NTPL regime and the requirements of the NIA 1965 in circumstances where the following conditions are satisfied:

• an environmental permit must be in force which contains restrictive provisions regarding the radioactivity limits of the radioactive waste disposed of at the site;
• radioactive waste above a certain radioactivity threshold must not have been accepted at the site historically, or, if it was, it has been removed; and
• the site / operator also satisfies any other conditions specified by the Secretary of State in regulations.

Provided that the above requirements are satisfied, the operator of a low level waste disposal site may make an application to the Secretary of State seeking the exclusion of the site from the UK NTPL regime. The application must be made by the site operator and must be accompanied by such documentation as may be specified in regulations by the Secretary of State.

Once a disposal site has been excluded from the UK NTPL regime, any subsequent acceptance at the site of waste above the specified radioactivity threshold is to be treated as a breach of the conditional exclusion. In that event, the operator is required to notify the Secretary of State within 21 days of becoming aware of the breach, and then remove the relevant waste from the site within 90 days of that notification. The site will only continue to benefit from the exclusion where these requirements are adhered to and the Secretary of State has confirmed to the operator in writing that the site continues to be excluded from the UK NTPL regime.

Welcome reform but complexity remains

These changes will be welcomed by the nuclear industry and the waste disposal industry more widely. They are designed primarily to ensure that the UK’s regulatory regime is aligned with international frameworks on radioactive waste disposal, but also to ensure that radioactive substances are managed and regulated in the UK in a manner that is proportionate to the risks that they pose to human and environmental health. The amendments do, however, add further complexity to the NIA 1965, which was already one of the most convoluted and complex instruments of legislation on the UK’s statute books, and highlight the need for site operators to obtain expert advice in respect of their waste disposal activities.