Dilute and disperse

29 May 2009

Efforts to introduce European nuclear safety standards have been watered down to the extent that they will make no difference. By Antony Froggatt

In late 2008 the European Commission (EC) published “Commission Proposal for a Council Directive (Euratom) setting up a Community framework for nuclear safety.” This innocuously-titled draft legislation is the latest version of long-standing attempts by the commission to introduce legislation on nuclear safety in the European Union (EU).

Nuclear power has a different relationship to the European institutions than that of the other energy sectors; in fact the relationship is quite unlike any other industrial activity due to the existence and rules of the Euratom Treaty. As one of the founding treaties of what is now termed the EU, the Euratom Treaty was designed to support the development of nuclear power, citing it as ‘an essential resource.’

Despite the ongoing process of reform and merger of the EU treaties and institutions in general, the Euratom Treaty has remained a separate legal entity. Nuclear power has its own rules for the adoption of legislation (no co-decision with the European Parliament) and its own research and development budget. While the other founding treaties of the EU have lapsed (for example the European Coal and Steel Treaty) or been replaced (the Treaty of Rome) the remit and scope of the Euratom Treaty has not significantly changed, and surprisingly does not include responsibility for setting nuclear safety standards. Instead it is responsible for the health and safety of workers and the general public.

The lack of binding nuclear safety rules in the EU was highlighted during the largest enlargement process, when ten new member states joined in 2004. A number of candidate countries operated nuclear reactors that raised significant safety concerns.

During the reunification of Germany, the entire fleet of Soviet-designed reactors which were in operation or under construction were closed or abandoned. This affected all generations of LWRs: the VVER 440-230s – Greifswald units 1-4, operating; VVER 440-213 – Greifswald unit 5, operating; and at Stendal the VVER 1000 under construction. Their closure was a recognition that attempting to apply those standards in operation in the former West Germany would be either technical impossible and/or economically unjustifiable.

Amongst candidate countries there were Soviet reactors in operation in Bulgaria, the Czech Republic, Hungary, Lithuania and Slovakia, while reactors built by Western contractors were also in operation in Slovenia (Westinghouse) and Romania (AECL). Despite the experience in former Eastern Germany, the commission made clear its views on nuclear safety in accession countries in its Agenda 2000.

“The first generation of reactors, the VVER 440-230 and RBMK designs, cannot be economically upgraded to an acceptable safety standard and need to be closed.” The reactors in question were already the subject of agreements that laid out closure dates and conditions. Agenda 2000 called for these agreements to be abided by.

“The second generation of reactors: the VVER 440-213 and VVER 1000 designs that are in operation or under construction can be economically upgraded to meet international safety standards,” it said. The commission stated that an upgrading programme should be fully implemented over the next ten years.

“Western design reactors in operation and under construction in accession countries require monitoring, and assessments need to be undertaken to ensure that the operation and construction was in line with the appropriate safety standards.”

In three of these countries first generation designs were in operation: four VVER 440-230 in Bulgaria; two VVER 440-230 in Slovakia and two RBMK reactors in Lithuania. For a number of years the G7 countries and the EU had sought the early closure of these reactors. Accession offered an important political leverage to achieve this objective. Therefore, part of the accession partnership agreements included specific closure dates for these reactors. As a result, the reactors in question were granted around five years additional operational life.

Whilst the closure dates were signed into the accession partnership agreements, the EC and the EU in general had little or no enforcement requirements for the upgrading requirements for the other reactors designs, especially once the countries had joined. The commission also noted: “A new community reference framework on nuclear safety standards is therefore indispensable. It would be inconceivable for the union to monitor nuclear safety in just the new member states but not in the rest of the enlarged union.”

Standards for all

To rectify this situation, the EC published a draft proposal Setting out basic obligations and general principles on the safety of nuclear installations in November 2002.

This stated:

“In order to attain the community objectives regarding radioprotection... it is essential as a first stage to define the basic obligations and general principles on the safety of nuclear installations... This will at a later stage be complemented by the establishment of common standards and control mechanisms in order to guarantee a high level of safety which takes into account technological developments.”

These standards would be legally enforceable and applied throughout the EU. The proposal was for a framework directive, which would lead to the introduction of a number of directives addressing nuclear safety.

The proposed safety legislation was one of three new nuclear directives. The others were to be on financing nuclear decommissioning, and nuclear waste management. The draft decommissioning directive never saw the light of day as the commission’s legal services group deemed that its legal base would have to be Article 203 of the Euratom Treaty (which relates to the introduction of new areas of competence). However, Article 203 requires the unanimous approval of member states, rather than qualified majority requirements for other areas of the treaty, and this was thought to be impossible to achieve. Consequently, the draft directive was abandoned and some elements were incorporated into an annex of the safety directive.

The draft directive on the management of spent nuclear fuel and radioactive waste was the most demanding of the proposed pieces of legislation. In particular the directive proposed clear timetables for the disposal of radioactive waste.

• Authorisation for the development of appropriate disposal sites should be granted no later than 2008.

• Authorisation for the operation of sites to dispose of low-level radioactive waste should be completed by 2013.

• Authorisation for the operation of sites to dispose of high-level radioactive waste should be completed by 2018.

On nuclear waste export the draft directive stated that “the [waste management] programme may include the exports of radioactive material of spent fuel to another member state or third country, if such exports are fully in compliance with existing EU legislation”. Some feared that this would result in the construction of regional radioactive waste dumps in the EU or the export of waste to countries such as Russia or Kazakhstan.

The legal base for draft directives was Article 31, which requires that the EC seek the opinion of an expert group (known as the Article 31 Expert Group) and the Economic and Social Committee (ESC), prior to the formal introduction of the legislation. This was carried out at the end of 2002 and led to the publication of revised directives in January 2003. While the comments of the Article 31 Expert Group and the ESC were important, their engagement also enabled further consultation with member states, which had significant influence on the redrafting.

On the fundamental point of the introduction of nuclear safety standards a key shift took place, with the removal of any reference to the introduction of a framework directive. As the EC later explicitly noted:

“The proposal for a directive setting out basic obligations and general principles on the safety of nuclear installations, approved by the commission on 30 January 2003, is not a framework directive entailing the drafting and implementation of sub-directives under it.”

Therefore, the intention to introduce common nuclear safety standards was withdrawn and instead the legislation stated that each member state shall ensure that:

• It has a safety authority, which is independent from bodies that promote or utilise nuclear energy. The safety authority shall regulate and supervise safety of nuclear installations and grant the necessary licences.

• The operator runs the facility in accordance with ‘common safety standards’ and gives priority to nuclear safety.

• The regulator carries out nuclear safety inspections.

• Adequate financial resources are available to support the safety of facilities.

• It establishes procedures for reducing accidents and incidents, and provides adequate notification.

In order to verify that these activities took place, the EC would oversee verification missions by experts.

In the radioactive waste directive, the timetable for the disposal of radioactive waste in the 2003 version remain largely unchanged, as did most of the key provisions.

The nuclear package, as the directives become known, created unusual fissures in a normally predictable, pro- and anti-nuclear landscape. Many of the non-nuclear countries, such as Austria and Ireland, were supportive, while recognising the weakness of the draft directives. Their support suggests that despite the removal of reference to the framework directive, the legislation would generally increase nuclear safety.

Also supportive was the French government, which did not see them as overly burdensome. It considered them beneficial, particularly in increasing public confidence in nuclear safety, and therefore gaining support for nuclear power.

Strongly opposing the draft directives were four countries: Finland, Germany, Sweden and the UK. There were differing reasons for opposing the directive.

The UK stated: “We do not believe that the management of radioactive waste and spent fuel is an area where national policies should be dictated at the community level in the way the commission proposes.”

The German government stated: “The proposal for a directive laying down common standards for the safety of nuclear installations lacks direction in its current form. Much of it is modelled on the International Atomic Energy Agency Convention on Nuclear Safety (IAEA CNS), which has already been ratified by all member states. If European legislation is to represent added value in this area, it must ensure a high level of safety in EU nuclear installations.”

Watering down

During 2003 discussions in the Atomic Questions Working Group led to considerable changes, including the dropping of the waste management timetables. Despite these changes, the opposition of the four countries remained and they formed a blocking minority within the council. Meanwhile, parliament gave an opinion on the draft directives that basically endorsed the commission’s approach.

The enlargement of the EU in May 2004 offered a new opportunity for the safety package. The revised voting weights within the council meant that four countries alone could no longer form a blocking minority. However, some new states opposed the draft directives and in June 2004 a number of countries, including Finland,

Germany, Sweden and the UK, with the Czech Republic, Hungary and Slovakia, rejected or abstained on the legislation.

Instead of undertaking a wide-ranging consultation, as requested by the council, the EC re-tabled the directives in September 2004, stating that they were ‘vital for the safety of nuclear energy within the enlarged EU’.

This third revision of the nuclear safety directive further reduced the involvement of the EU institutions.

Most importantly, the draft directive proposed a new committee of regulatory authorities instead of the verification missions required in the previous version. The committee, to be made up of representatives of member states, was designed to encourage best practice and give an opinion on national reports, including recommendations to the EC.

In the nuclear waste directive, the community-wide timetables for the establishment of disposal or storage facilities were removed. Instead, it called for national management programmes to include timetables for the management of low-, intermediate- and high-level waste.

The council did not hold detailed discussions on these drafts and responded by establishing three working groups to look at safety, waste and decommissioning, with the objective of reporting towards the end of 2006. This effectively pushed the issue off the agenda for at least a couple of years.

In October 2006 the EC adopted a recommendation on the management of financial resources for the decommissioning of nuclear installations, spent fuel and radioactive waste. Although not binding, the recommendation stated that segregated funds were the preferable vehicle for the accumulated waste management funds and that all new installations should introduce them. However, it did not call for their introduction for currently operating facilities.

In November 2008 the EC published a revised directive setting up a community framework for nuclear safety, but not a new draft of the waste directive. The latest proposal for a safety directive has no community verification or committee of regulators. Instead the draft directive will enforce the requirements of the IAEA CNS.

This requires the publication of an annual report on the status of the nuclear sector and subjects the report to peer review by other contracting parties of the convention. All member states that operate nuclear power plants are already contracting parties to the convention.

It appeared that this, the fourth draft, of the directive would now gain the support of the majority of member states and that there would be insufficient opposition to form a blocking minority. Discussions at the end of 2008 within the European Nuclear Safety Regulatory Group have shown that while the majority of states are supportive there are still a number of areas in which there is disagreement over the current text.

Exactly how the document referenced the IAEA CNS was discussed by the Atomic Questions Working Group of the European Council. The final version was restructured to remove an article with 'safety requirements,' including references to the IAEA and WENRA (Western European Nuclear Regulator Association).

The Plenary of the Parliament voted in favour of the directive in its April Strasbourg session, but added some final changes.

The last draft before voting said that IAEA's nuclear safety should be 'respected.' Following a late amendment, the wording was strengthened: ‘For the siting, design, construction, operation and decommissioning of nuclear facilities, Member States shall apply those parts of the IAEA safety fundamentals (IAEA Safety Fundamentals: Fundamental safety principles, IAEA Safety Standard Series No. SF-1 (2006)), which are relevant to the creation of a Community framework for nuclear safety, as specified in the Annex’.

There was also a procedural modification. Although the EC consulted the views of an expert group (the Article 31 Expert Group) when it drafted the legislation in 2002, it did not do so again in 2008, arguing that the step is not necessary when redrafting an existing proposal. But, following a query earlier this year, Parliament did in fact call for the commission to consult again with the expert group.

After four draft directives and over four years the Commission is likely to finally adopt a nuclear safety law during 2009.

When originally drafted in 2002, the law would have led to the introduction of binding European nuclear safety standards. The current draft of the directive is far from such aspirations and is only proposing the enforcement of an international treaty to which all directly affected states are party to.

Author Info:

Antony Froggatt is an independent consultant specialising on European energy policy. He has previously worked for environmental non-government organisations and is currently a part-time senior research fellow at Chatham House Environment, Energy and Resource Governance Department. This article was written in a personal capacity.

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