By Arveent Kathirtchelvan

The following article is a reply to YB Wong Tack’s comment on Australian High Commissioner to Malaysia, Andrew Goledzinowski.

Legislative Proof

YB Wong probably thinks he has cornered the Australian High Commissioner to Malaysia by using such fancy words as corporate malfeasance but let me counter his arguments by a simpler term: political manipulation.

Firstly, Wong Tack claims the Aussie High Commissioner attempted to wave away Lynas’s responsibility on their wastes. He further claims the removal of wastes was expected of Lynas when they started operations. This is not the case.

As I and the High Commissioner have stated multiple times before the waste management strategies agreed upon is clear. First, the residues will be attempted to be commercialised as products in and of themselves. If this fails, the residues will then be disposed in a Permanent Disposal Facility within Malaysia. If this fails, the residue will be exported.

YB Wong seems to refute this but in the recent Executive Committee report, page 33, point 71, it states:

“Dalam hal ini, jelas bahawa pengoperasian Lynas masih tertakluk kepada syarat khusus yang ditetapkan iaitu seperti berikut:

i. menjalankan kajian pembangunan dan penyelidikan (R&D) bagi residu selaras dengan Pre-Packed Incentive Scheme yang dikeluarkan oleh Lembaga Pembangunan Pelaburan Malaysia (MIDA) bertarikh 12 November 2007 kepada Lynas;

ii. mengemukakan semua maklumat teknikal iaitu maklumat mengenai pelan dan lokasi PDF dalam tempoh masa lesen ini dan tidak melebihi 10 bulan daripada tarikh pengeluaran lesen ini untuk diluluskan oleh Lembaga tanpa mengambil kira apakah hasil daripada R&D pengkomersilan, pengkitaran dan pengunaan semula bahan residu; dan

iii. memastikan semua residu yang dihasilkan dibawa keluar dari Malaysia sekiranya R&D pengkitaran semula serta lokasi tidak dikenal pasti atau diluluskan.”

Page 34, point 72 of the same report states:

“Syarat di atas hendaklah dilakukan secara berperingkat iaitu sekira syarat pertama tidak dapat dilaksanakan, maka Lynas perlu melakukan tindakan berdasarkan syarat kedua. Sekiranya syarat kedua tidak dapat dilaksanakan, Lynas perlulah mengambil tindakan mengikut syarat ke-3. Keputusan 4 Menteri mengeluarkan kenyataan berhubung Lynas juga jelas menyatakan sekiranya Lynas tidak mematuhi syarat-syarat tersebut, maka barulah residu tersebut perlu di bawa keluar dari Malaysia.”

So it is clear that the manipulation of facts is coming from the Wong Tack-Fuziah Salleh-Yeo Bee Yin camp towards Lynas, not the other way around. Either that or they don’t understand Bahasa Melayu. Basically, the ministers stated that it was a provision in the Temporary Operating License that Lynas was tied to removing the wastes. When this removal is necessary is as I have stated above according to the licensing terms which are readily available at the AELB website to be read. Particularly good is the FAQ Lynas – Compilation of FAQs from Feb 3rd to Apr 15th 2012.

Moreover, Wong Tack seems to preemptively yell ‘Checkmate!’ when he points out that while a scheduled waste generator can appeal to the Director General of the Department of Environment to store more than 20 metric tonnes of scheduled waste, the same can’t be done to store said wastes for more than 180 days, according to Regulation 9 of the Environmental Quality Act (Regulations) 2005.

Unfortunately for the YB, section 34 of the Environmental Quality Act 1974 states:

“If the Director General is satisfied on the application of any person interested that it is expedient to do so for the purpose of enabling investigation or research relevant to the problem of pollution to be carried out without rendering the applicant liable to proceedings under this Act or the regulations made thereunder, the Director General may by notice in writing to the applicant exempt, wholly or to a limited extent any premises or any equipment or industrial plant, subject to such conditions and for such period as may be specified in the notice.”

This is where the relevance of the first waste management strategy comes in. Lynas wastes are considered residue as there is a view of commercialising them for future purposes (amongst which is Condisoil). Coincidentally, point 34 of Bahagian 3 in the Executive Committee report states:

“Penggunaan NUF dalam proses penghasilan Condisoil bagi tujuan penyelidikan adalah dibenarkan berdasarkan peruntukan Seksyen 34, Akta Kualiti Alam Sekeliling 1974”

Further, according to Lynas themselves:

“Malaysian regulations provide two alternatives for management of this material:

  1. Apply for the special management of the material to facilitate reuse (Regulation 7(i) of the Environmental Quality (Scheduled Waste) Regulations 2005) (“Option 1”); or
  2. Dispose of the material at prescribed premises. (Order 3 of the Environmental Quality (Prescribed Premises) (Scheduled Wastes Treatment and Disposal Facilities) Order 1989) (“Option 2”).

As a lawful company, Lynas has sought to follow the policy direction of the government of Malaysia. For the past 5 years, the government’s preference was for Option 1 (reuse) and  therefore Lynas applied for (and received) temporary storage permissions pending reuse. During this time Lynas Malaysia did not apply for the LAMP to be licensed as prescribed premises for disposal of the material instead investing in research to identify suitable options for reuse.”

Regulation 7(i) of the Environmental Quality (Scheduled Waste) Regulations 2005 states:

“A waste generator may apply to the Director General in writing to have the scheduled wastes generated from their particular facility or process excluded from being treated, disposed of or recovered in premises or facilities other than at the prescribed premises or on-site treatment or recovery facilities.”

For WLP, part VI section 9 of the Atomic Energy Licensing (Radioactive Waste Management) Regulations 2011 or PU(A) 274/2011 states:

“The licensee shall, before declaring radioactive material including a sealed source as radioactive waste, consider whether he or any other person can make use of or recycle the radioactive material”

This is acknowledged by the Atomic Energy Licencing Board who state:

“P.U.(A) 274 (Part IV- Reuse and recycle of radioactive wastes): As defined in the Atomic Energy Licensing (Radioactive Waste Management) Regulations, clearance level means the values established by the Board and expressed in terms of activity concentration or total activity, at or below which the source of radiation may be released from the control of the Board as specified in Second Schedule of the Regulation. Any material falling below the limit stipulated in the Regulation is considered as non-radioactive and is not controlled by the regulator.

The limit for exemption of radioactive wastes is based on the activity concentration of radionuclides as referred to in the Atomic Energy Licensing (Radioactive Waste Management) 2011 and the permissible dose limit to public as stipulated by the Atomic Energy Licensing (Basic Safety Radiation Protection) Regulations, 2010. This is in-line with recommendation ICRP 60 (1991) set by the International Commission on Radiological Protection.”

The other points by YB Wong Tack concerns the storage of wastes causing dust pollution and flooding dangers of the LAMP site. The Executive Report shows no such dust pollution and I’d like to refer YB Wong Tack to the AELB statement stating there is no risk of radioactive leaks from Lynas due to floods here.

Final Words

Conclusively, we can see there is nothing sinister about Lynas, how it has operated, why it got the approvals it did and what is left to be done. Simply put, if the recycling option done by Lynas, which shows positive results but has been recommended by the Executive Committee to be continued by an independent committee funded by Lynas, the government can simply ask Lynas to build Permanent Disposal Facilities.

In fact, Lynas has been ready to pursue the PDF route for some time now and it was the previous government’s insistence on recycling that deterred them from pursuing it. The Executive Committee report even states that Lynas should build PDFs for their residue despite research on their reuse. Lynas is willing to pay for it, even.

So, recapping, the waste storage and disposal for Lynas has been going on smoothly without non-compliance. If not, surely the Government or at least NGOs such as Save Malaysia, Stop Lynas, Sahabat Alam Malaysia and the Consumer Association of Penang could have readily sued them. Are we supposed to believe with YB Wong in DAP, a party in the government, a party overseeing Lynas licensing through MESTECC, could not find the proof enough to file a class-action suit? Then again, they say time and again that they do.

But if this is not the case, and these NGOs don’t believe in Lynas recycling their residue, they can be pushing for Lynas to build safe PDFs, following the licensing terms, paid for by Lynas. They aren’t. They want Lynas to remove their wastes entirely, breaking the licensing terms in the first place. With a party that once slandered Lynas as a nuclear plant ready to explode, what else can we chalk this obstinance up to instead of political manipulation?

Finally, we must remember that such uncouth handling of a foreign diplomat might endanger the relationship between Australia and Malaysia. In anything that we do, there must be some level of diplomacy in handling international relation, what more when the other party is essentially correct.

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