MESTECC Must Reject Lynas’ Appeal - The Path is now Clear for Lynas to Ship Back Its Toxic Waste
28th June 2019
Closed-door Hearing Between Lynas and AELB
Today is the hearing date for Lynas’ appeal against the decision by the Minister for Environment, Science, Technology and Climate Change (MESTECC) YB Yeo Bee Yin last December. She has imposed two conditions for the renewal of Lynas’ license as follows – see also Screenshot1 on page 5 of this press statement:
(i) to submit an action plan by the 15th February to remove its scheduled waste (NUF) from the premises of the Lynas Advanced Material Plant (LAMP), accumulated over the years amounting to 1.15 million tonnes as at September 2018; and
(ii) to remove the waste from the water-leached purification (WLP) stream from Malaysia, in accordance with Lynas’ own written undertakings given in 2012. Lynas’ temporary storage licence for this waste expires on 2nd September.
The WLP waste contains a significant amount of long-living low-level radioactive thorium, toxic uranium, toxic heavy metals and chemicals. Many of the toxic elements are cancer causing substances that need to be isolated from the biosphere. The WLP waste is essentially a toxic waste.
SMSL is disappointed that the hearing is a closed-door meeting between Lynas and AELB. Mr Tan Bun Teet, chairman for SMSL commented, “Concerned residents are a key stakeholder. A public-interest civil society group like SMSL should be a party to the appeal since the decision will affect Malaysia’s future, citizens’ health and well-being.”
Lynas Must Remove its WLP Waste from Malaysia
Removing the WLP waste has been written into the license condition by AELB in 2012 – see TOL2 or page 2 of the TOL attached. This condition has been promoted and highlighted by several BN Ministers with the blessing of the previous Cabinet under former PM Najib – see attached public statement. Specifically, it has referred to it “…as a specific condition that the company removes all the residue generated by LAMP out of Malaysia. This includes all products made from the residue. The Cabinet has also endorsed this condition. “
The BN Ministers then went further to assured members of the public that: “Should Lynas fail to comply with this condition, the Atomic Energy Licensing Board (AELB) is empowered, under section 22 of the Atomic Energy Licensing Act 1984 (Act 304), to suspend or revoke the TOL and order Lynas to immediately cease operation. “
AELB is Not Independent, Objective or Professional
Mr Hon Kai Ping, SMSL’s legal adviser lamented, “Having witnessed years of prevarication and non-disclosure by AELB, against IAEA’s recommendations; and its bending backwards to accommodate Lynas against its own regulation and licence conditions. We have no confidence whatsoever that AELB can be independent, objective or professional in its dealings with Lynas. It has been complicit, appearing as it were on behalf of Lynas during past road shows in the face of strong opposition from the people and at various public forums over the years.”
Essentially, Malaysia has no credible radiation protection agency as AELB has continued to shift its own safety limits and precautionary safeguards in order to accommodate Lynas.
AELB Failures Resulted in Groundwater Contamination
“It is precisely because of AELB’s negligence and failure to enforce the law and to ensure that Lynas comply with its licence conditions that half a million tonnes of toxic radioactive waste has been left piling up by the LAMP site in Gebeng. And this waste has, according to groundwater monitoring data revealed in the report of the Executive Review on Lynas, contaminated our groundwater and the surrounding environment since 2015.” Mr Hon added.
Under the Water Services Industry Act (WSIA), contaminating water ways or water supply including groundwater with radioactive substance is considered a national security issue, so much so that it is a serious offence punishable with a maximum jail term of up to ten years, fine up to RM500K and/or whipping. The relevant section of the WSIA is attached for reference.
Mr Hon further lamented “Yet both of our regulators – namely AELB and DoE, supposedly the guardian of our environment and our well-being, paid for by taxpayers, have failed to discharge their responsibilities by strictly enforcing their own regulations. They have failed to protect current and future generations of Malaysians from health risks and threats of livelihoods.”
Lynas’ Toxic Waste is neither Marketable nor Commercially Viable
“Instead, they have continued to side with a foreign company that has the audacity to still propose that its toxic waste be recycled for commercial purposes, despite seven years of failures since it is clearly an unmarketable proposition. Furthermore, Minister Yeo has already decided against the use of the WLP waste in any future trial (See Screenshot 2 on p.5).” Mr Tan added.
In recent months, Malaysia has had a series of disastrous pollution incidents – from the toxic fume in Sungai Kim Kim in Johor, the multiple deaths of Orang Asli to Lynas’ rising piles of waste. These are symptomatic of a systemic and systematic failure of pollution control and toxic waste management; and a government failing to protect those who are most vulnerable and defenseless.
Mr Tan clarified, “SMSL has been vocal on the Lynas issue because we do not want our beautiful Malaysia to become a toxic waste dumping ground of the world.”
Western Australia Can Accept Lynas’ Waste If Lynas Process its Ore Locally
Earlier this week on the 24th June, Mashal Ahmad, Lynas Malaysia’s Vice President and Managing Director has announced that Lynas’ plan to build a leaching and cracking (LnC) plant in WA to remove the radioactive materials from its lanthanide concentrate before sending the feedstock to the LAMP in Malaysia. This proposal will take many years before the plant is operational, even if Lynas can find the money to finance it since it is still struggling to pay off past debt.
“Now, seven years have passed since all of those promises and commitments were made, we hear yet again the very same promises that Lynas can do this and that. Lynas is asking Malaysians once again to believe in its ‘commitment’? Are Malaysians that stupid? Are we so hungry for investment that we are prepared to put at risks our health and that of countless generations of Malaysians to come? Concluded and asked Mr Hon.
According to a Hansard transcript from WA obtained by SMSL, the reason that WA Government has refused to accept Lynas’ waste is because it has preferred for Lynas to process the ore locally. Attached is the transcript for reference.
Mr Tan concluded with a clear message for Minister Yeo, “We urge MESTECC YB Yeo Bee Yin to stand firm by her decisions made last December in the interest of Malaysia, for the health and well-being of local community to reject Lynas’ appeal. Since Lynas is planning to build the LnC plant in WA, then Lynas must start to negotiate with the Government of WA to return the toxic waste to WA to comply with YB Yeo’s decision and to fulfil its own undertakings.” Mr Tan urged.
For further comments, please contact:
· Mr Tan Bun Teet - Hp: +60 179 730 576
· Mr Hon Kai Ping - +60 112 544 7356
Key Facts on AELB’s Failures as a Regulator
Back in 2012, then Head of AELB “Raja Datuk Abdul Aziz Raja Adnan said Lynas was legally bound to ensure that all residue was removed and that AELB would enforce it”.
“Raja Datuk Abdul Aziz said the TOL approved to Lynas Malaysia was subject to the conditions imposed, including an additional two under subsection 32(5) of the Atomic Energy Licensing Act.”
· AELB failed to act on Lynas’ violation of licence conditions.
§ 1st February 2012 – AELB approved Lynas’s application for a Temporary Operating Licence (TOL) with a set of pre-conditions, and where necessary, to return the waste to its source – see TOL attachment for details. In truth, Lynas has never fulfilled conditions (i) to (iii) and AELB has never made public any detailed plan for the permanent disposal facility (PDF) including its location, even though a PDF was supposed to be finalised and approved within 10 months from the TOL.
§ AELB went ahead to issue Lynas with a Full-Stage Operating Licence (FSOL) in September 2014 and renew the FSOL in September 2016, still without any details of a PDF or any commercialisation possibility of Lynas’ wastes. DoE would have access to the ground water contamination monitoring data by then but it simply went along with the 3-year FSOL renewal.
AELB Failed to Follow Through Recommendations by the IAEA (related to the WLP waste)
The 2011 IAEA Mission report made it very clear that its assessment has been made specifically for consideration at the pre-operating licensing stage decision making, and cannot be relied on for subsequent stages of operations.
None of the IAEA Reports in 2011 or 2014 has concluded that the Lynas rare earth refinery operation is safe. In fact, IAEA made 11 recommendations for improvement from the 2011 review and made more suggestions from its 2014 follow up mission.
Listed here are examples of the findings, although this is not an exhaustive list. Many suggestions were made by the 2014 IAEA follow-up review mission as there were outstanding issues yet to be satisfactorily addressed by AELB and/or Lynas.
· IAEA’s reference to “low risk” applies to the plant and NOT the WLP waste. In any case the risk refers to cancer risk, a fatal illness which most sane people would do everything to prevent getting. In fact, page 7 of the 2014 IAEA Mission Report has highlighted AELB’s failure to ensure that Lynas’ WLP waste has a safe permanent disposal plan and that Lynas has not updated its Safety Case Analysis of its inadequate WLP waste storage.
· Page 11 of the 2014 IAEA report was scathing of Lynas’ public relation exercise by installing useless radioactivity reading displays instead of seriously monitoring radioactivity of the wastewater discharged from the LAMP into the Balok River.
· Page 9 to 12 outline the incomplete radiological monitoring effort of Lynas and 3 further suggestions for Lynas to improve on its environmental radioactivity monitoring, especially of the aquatic pathway; to provide more detailed modelling of the ecological and public health impacts of radioactive effluents to the Balok River
· Page 13 highlights IAEA’s dissatisfaction with AELB’s poor efforts and basis used to determine and recover from Lynas costs of long-term management of waste including decommissioning and remediation. AELB’s failure will lead to undue financial burden being passed onto Malaysians in the future.
· In page 18, IAEA further emphasized the need for AELB and Lynas to be transparent with the licensing process and to regularly provide updated online information by making key documents accessible to the public.
· In page 20, IAEA suggested that Lynas engaged pro-actively with a wide range of stakeholders including its opponents; and to make available online monitoring data to the public.
Weblinks for the IAEA Reports are as follows:
Screen shot 1- from page 2 of the 4th December 2018 Press Release by MESTECC
Decision of the ministry based on the executive review committee report on the operation of the Lynas Advanced Materials Plant (LAMP) in Gebeng,
Pahang two pre-licence conditions imposed by MESTECC in December 2018:
Screen shot 2 : from page 3 of the 4th December 2018 Press Release by MESTECC
Decision of the ministry based on the executive review committee report on the operation of the Lynas Advanced Materials Plant (LAMP) in Gebeng, Pahang
Decision on WLP waste in future trials
 Uranium is hazardous both from its radioactivity and its chemical property.
 Any material with radioactivity concentration above 1Bq/g under international radiation safety and protection regulatory requirement must be regulated by a competent and independent agency. Lynas’ WLP waste has a radioactivity concentration of between 6 to 8Bq/g, eight times higher than the regulatory limit.