Working paper on nuclear safety
The draft directive of the Commission on the nuclear safety
(2003/21(CNS)) 26.8.2003
This is a working document written by Esko Seppänen,
MEP, who will draft the Opinion of the European Parliament's
ITRE Committee on a proposed Directive on the safety of nuclear
installations. This paper is distributed freely to all interested
parties. Any comments or observations are very welcome at
the following address: eseppanen@europarl.eu.int
The final draft report to be approved by the ITRE Committee
will differ from this document . The amendments will be presented
in twocolumns , one containing the original article proposed
by the European Commission and the other the proposal for
amendment to this article by the European Parliament. Any
suggestions for new amendments are also welcome.
The European Parliament,
- having regard to the treaty establishing the European Atomic
Energy Community (Euratom) and especially the articles 2(b),
30-32, 187 and 203,
- having regard to the proposal from the Commission (2003/21(CNS)),
- having regard to the judgement of the European Court of
Justice dated 10 December 2002 in the case C-29/99,
- having regard to the opinion of the European Economic and
Social Committee (TEN/128),
- having regard to the opinion of the Group of experts referred
to in the Article 31 of the Euratom Treaty, dated 19.12.2002,
To be taken into account
- taking into account that the Member States have differing
views on the production of nuclear energy and disposal of
radioactive waste and that this is often controversial,
- taking into account that there is no common long-term solution
to the overall energy problem,
- taking into account that nuclear reactors produce around
17% of the total world electricity production,
- taking into account that nuclear energy accounts for about
15% of primary energy consumption and about 35% of electricity
consumption in the EU,
- taking into account that any harmonisation of nuclear safety
legislation cannot change the basic differences of opinions
of the individual Member States on nuclear energy,
- taking into account that nuclear safety measures differ
considerably from one Member State to another.
- taking into account that the consequences of any irregularity
or accident is a cross-border and global issue,
- taking into account that the aim of the Commission is to
ensure the use of best nuclear safety practice in all Member
States,
- taking into account that the IAEA Nuclear Safety Convention
applies to nuclear power plants, while the Commission´s
proposal applies to all civilian nuclear facilities,
- taking into account the views, opinions and studies from
interested parties, including among others the Nuclear Regulators
Working Group (NRWG), the World Association of Nuclear Operators
(WANO), the Western European Nuclear Regulators Association
(WENRA) and also anti-nuclear NGOs.
- taking into account that many anti-nuclear lobbies call
for all nuclear plants to be shut, but as long as there is
commercial exploitation of nuclear power, excellent nuclear
safety levels are required.
Notes
There is a legal requirement for consultation with the European
Parliament although the procedure for approving the Directive
is not co-decision.
The Member States are free to apply more rigorous rules themselves.
Many nuclear operators welcome this proposal as a way to
make nuclear power more acceptable, but are not convinced
that any additional safety legislation is required.
The operators say that there has been harmonisation at utility
level, that best practice has been shared and that nuclear
safety, which is excellent in Europe, should be harmonised
and strengthened globally on the basis of "sound"
technical considerations. However, these operators are looking
at the issue for their own point of view, making it difficult
to judge if the Commission is right or wrong in its pursuit
for world´s highest safety standards.
Many national regulators have a deep mistrust of Commission´s
intentions. The regulators need to be free to enforce national
responsibility for safety on the operators within their jurisdiction.
They may be afraid of bringing the national authorities under
the Commission´s control. Again, the national regulators
are looking at the issue from their own point of view and
so again it is difficult to judge if the Commission is right
or wrong.
Is the Commission, in implementing the Euratom Treaty with
a pro-nuclear bias as in this proposal, taking a pro-nuclear
stance in general energy policies?
In the USA, the new Price-Anderson provides unlimited government
insurance for nuclear operators in case of catastrophe, but
the Commission's proposal does not suggest any such insurance.
International Atomic Energy Agency (IAEA)
The Nuclear Safety Convention concluded under the auspices
of the International Atomic Energy Agency (IAEA) neither contains
technical rules nor is legally binding.
All EU countries are Parties to it and implement it.
The technical standards drawn up under the aegis of the IAEAcontribute
to improving nuclear safety.
The IAEA standards are not formulated with the criteria for
legal texts in mind, and they include differences in various
safety factors.
The IAEA´s standards apply only to nuclear power stations.
The Commission would include all nuclear installations, but
only nuclear fuel cycle and research facilities.
In the global safety regime, there is a need to provide for
the application of IAEA safety standards in a harmonised way.
Revision and developmentof these standards is an ongoing process.
The IAEA is an intergovernmental decision-making mechanism.
The Commission´s proposal, however, would provide for
a Community Approach: a regional, non-global adoption and
adaptation process of legally-binding texts.
The IAEA´s procedure for setting standards should not
be replicated within the EU.
The definitions and rules of the IAEA are used by the Commission
as a general reference framework and reference point for checking
that these are fully and rigorously applied by the Member
States.
The Community Approach can be interpreted as a method for
either pursuing new stricter technical standards for the IAEA
or for transforming IAEA safety standards to a new Community
framework?
Legal base and timetable
1. The legal basis for the action complementing the basic
standards is provided for in the Chapter 3 of the Title II
of the Euratom Treaty.
2. This chapter of the Treaty has been used with regard to
radiation protection, but in the draft Directive, the health
protection is extended to cover both radiation protection
and nuclear safety.
3. The legal base provides for the adoption of the Directive
by qualified majority, whereas many other Articles (in particular
the Article 203) of the Euratom Treaty require adoption by
unanimity. The European Parliament is consulted.
4. If the legal base were Article 203, the Commission seeking
new powers under Euratom Treaty is unlikely to get the unanimous
support of Member States
5. The Commission cites in its explanatory statement the
European Court of Justice case C-29/99 in the following way:
"Under Articles 30 to 32 of the Euratom Treaty, the Community
possesses legislative competence to establish, for the purpose
of health protection, an authorisation system which must be
applied by the Member States. Such a legislative act constitutes
a measure supplementing the basic standards referred in that
article."
6. According to the Commission´s interpretation, this
judgement expands its competence to the field proposed.
7. A specific procedure has to be followed in developing
common standards. The Commission needs an opinion from a group
of persons appointed by a Scientific and Technical Committee
and needs to consult the Economic and Social Committee. In
their respective opinions, both have questioned the legal
base.
8. The legal consequences of the Court of Justice case C-29/99
are not clear and the conclusions from it drawn by the Commission
may exceed the scope of what it is touched on in the the Convention
on Nuclear Safety (CNS).
9. The proposal includes provisions drawn from a number of
CNS Articles for which the Commission may not have competence.
10. The legal base may go beyond the scope of the Euratom
Treaty and possibly does not cover certain aspects regulated
in the proposed articles. The decommissioning funds do not
have implications for health practicalities and have more
to do with administration and organisational structures.
11. In some cases, national legislation is overruled making
a case to be interpreted by the Court of Justice. The proposal
may result in a transfer of traditionally exclusive national
competence to the domain of shared competence.
12. Given the eventual legally-binding nature of the draft
Directive, further clarification is needed so that its exact
purpose is made clear. There is no definition of the concept
"nuclear safety". There are no fixed dates by which
all installations have to meet the proposed requirements.
There is no mechanism proposed for dispute settlement. It
is not made clear who bears the ultimate responsibility for
nuclear safety .
13. The subsidiarity principle should be borne in mind, and
the question asked: is the proposed goal, in terms of both
scale or effects, really better achieved by the Community?
14. When the draft Directive does not contain any procedure
for drawing up the technical standards, the main question
is: through which kind of legal instruments and when will
the evolution of the legal framework take place?
15. Article 187 of the Euratom Treaty should also be considered:
"The Commission may, within the limits and under the
conditions laid down by the Council in accordance with the
provisions of this Treaty, collect any information and carry
out any checks required for the performance of the tasks entrusted
to it." This text provides for a general framework for
verification teams, for reports on national situations, and
for the critical review of these reports.
The Framework Directive
16. There is a public demand for improved nuclear safety
standards and a global safety regime with one common set of
safety standards not merely to be considered as a lowest common
denominator.
17. Development towards a common approach seems inevitable,
however, the Commission´s proposal fails to indicate
any weaknesses in current nuclear safety regulation.
18. The Commission has a goal for maintaining a high level
of nuclear safety in an enlarged European Union, and it wants
legally-binding rules to be adopted. "The Community system
will be based on basic obligations and general principles
and it will establish a legal framework comprising a mechanism
allowing an evolution."
19. The Community Approach comprises a set of standards and
a mechanism for the verification of compliance with the standards.
It does not entail laying down detailed technical safety standards,
and there are no references on new reactor design.
20. There is a need to establish an infrastructure to develop
and implement common safety standards beyond the framework
Directive, but it remains unclear how the development and
approval procedure of potential EU nuclear safety technical
standards, including operational standards, will be arranged.
21. The Commission lacks the human and financial resources
to carry out the tasks proposed by the Directive and national
regulatory resources are insufficient. Therefore, the resource
demands need to be recalculated in the legislative financial
statement in order to make the Community Approach credible.
22. The Framework Directive needs to be supplemented by more
far-reaching Directives, but these will not be ready by the
accession of new member countries.
Verification teams
23. The peer-review process based on the IAEA Convention
on Nuclear Safety is considered the most effective mechanism
for keeping countries under pressure to maintain high levels
of safety based on global standards.
24. The goal is that by the end of 2005 there will be a WANO
(World Association of Nuclear Operators) peer-review team
at every nuclear station in the world.
25. The International Regulatory Review Team (IRRT) has a
wider remit and more manpower compared to the one proposed
by the Commission.
26. There is voluntary co-operation between the Member States
on existing universally accepted standards: Western European
Nuclear Regulators Association (WENRA) now encompasses also
the regulatory authorities from those Accession Countries
that use nuclear energy.
27. Peer reviews consist of international team of experts
who observe and review plant operations. The Community approach
does not forsee plant reviews.
28. The Member States shall submit to the Commission lists
of experts who may then be called upon to inspect the activities
of the nuclear regulator.
29. It is not clear what kind of access the verification
teams will have to the documentation of the regulator (and
who is "the nuclear regulator").
30. It is not clear if the inspection reports are to be made
public.
31. The national safety authorities are submitted to the
verification process, but there is no proposal relating to
compensation.
32. The Community Approach means that the Commission has
the monopoly to decide what to verify and decide on any subsequent
action: whether and how the observations of the verification
team should be followed.
33. The Member States will be obliged to transmit reports
on the measures taken to meet their obligations and the state
of safety of installations.
34. The Commission will also be obliged to publish, every
two years, a report on the state of nuclear safety within
the EU.
35. The draft Directive should be amended to enable a Member
State to present its opinion on the remarks and proposal made
in the verification report.
36. The suggested process may multiply the number of the
reports with rather similar contents.
37. The Community Approach includes the possibility that
all Member States can participate in all aspects on an equal
footing.
Responsibility
38. The final judgement on adequacy of "safety level"
is subjective.
39. The Parties to the Convention on Nuclear Safety (CNS)
are committed to a national responsibility for safety and
the independence of their regulators.
40. Each country should benchmark its own experience to the
international practice.
41. Article 9 of the CNS needs to be better reflected: the
prime responsibility for the safety of the nuclear installation
rests with the licence holder.
42. Responsibilities and roles must be made clear and must
not be obscured.
43. There cannot be a Community responsibility for the safety
of nuclear installations, but the sole and ultimate responsibility
must be that of the operator ("polluter pays") and
that of the national regulatory institution(s).
44. The assessment of nuclear safety requires a thorough
familiarity with the details of each nuclear facility and
the technology used, as well as an understanding of how various
relevant safety factors are integrated . The national authorities
claim that they only have the capability to draw a conclusion
on adequate nuclear safety.
45. They also claim that national responsibility for safety
provides for the fastest way to modify safety regulations.
Accession Countries
46. "The legal framework will need to be operational
1 May 2004."
47. The Commission wants to develop a universal perspective
for the Accession Countries, but no technical EU standards
will be available by that date. Therefore, these uncertainties
in the text will be interpreted by the Commission only.
48. The proposed framework Directive does not make new significant
additional requirements on Member States or Accession Countries.
49. In the Accession Countries, the requirements and the
level of nuclear safety are largely the same as in current
EU Member States, as evidenced in a study carried out by the
Council.
50. The study carried through by the Councli demonstrates
that the level of nuclear safety in the Accession Countries
does not deviate significantly from that prevailing in the
present Member States.
51. The timetable cannot be justified by the accession.
The decommissioning funds
52. A comprehensive and verifiable set of safety requirements
concerning the decommissioning of a plant should cover the
complete fuel cycle, the whole life-cycle of any installation
and should apply to design, operation and regulation.
53. The ultimate management and disposal of spent nuclear
fuel and other wastes account for the majority of the costs
of decommissioning.
54. To deal with the decommissioning costs is to guarantee
that the financial resources are available for all aspects.
55. Behind all decommissioning schemes there is a hidden
agenda: the Member State is the financier of last resort of
any uncalculated risk or insolvency and bankruptcy of the
operator.
56. The legal base for Community action in the case of decommissioning
funds is nuclear safety and health protection. By that legal
base, the Commission tries to get its proposed Directive approved
in Council by qualified majority rather than unanimity.
57. The Member States shall provide information every three
years.
58. Transparency on the use of financial resources is needed.
59. The Commission will produce a periodical report on the
state of the funds and will undertake measures to address
irregularities which could either compromise the completion
of decommissioning or create distortions in the electricity
market.
60. The operator should have the sole responsibility for
the decommissioning funds.
61. Operators may use either company resources or contributions
to externally managed funds. Adequate financial resources
for the future decommissioning of nuclear installations must
be secured throughout their generating lifetime no matter
what type of management scheme is chosen.
62. Decommissioning costs are part of the electricity production
costs. The amount of the yearly funding, the applied calculation
and discount rates, and the requirement as to when and how
decommissioning takes place must be factored into production
costs.
63. The financing of the decommissioning fund in the Member
States must be in line with Community competition laws. The
decommissioning funds may be used by the operator for investments,
either in their existing facilities or market acquisitions
thus risking distortions in the internal market.
64. The European Parliament has decided: "In order to
ensure the availability of funds for future decommissioning
and to avoid obstacles to fair competition in the energy market,
Member States must adopt separate accounting for the financing
of future decommissioning or waste management activities.
These funds must be reviewed and audited annually by an independent
body, such as the regulator or regulatory bodies, to verify
that the revenues and the associated interest raised for these
future activities shall only be used for these purposes, that
is for decommissioning or waste management activities and
not used directly or indirectly to fund activities in the
market."
65. The Commission has rejected this stance and stated: "The
assets of the funds are to be used only to cover the costs
set out in paragraph 2 above in line with the decommissioning
strategy and may not be used for other purposes. To this end
the decommissioning funds shall be duly established with their
own legal personality, separate from the operator of the installation.
If exceptional and duly justified reasons make such legal
separation impossible, the fund could continue to be managed
by the operator."
66. The exceptional circumstances are not defined or who
shall judge the justification for the exception.
67. The following interinstitutional statement was attached
to the Directive on the common electricity market "The
European Parliament, the Council and the Commission underline
the need for Member States to ensure that adequate financial
resources for decommissioning and waste management activities,
which are audited in Member States, are actually available
for the purpose for which they have been established and are
managed in transparent way, thus avoiding obstacles to fair
competition in the energy market."
68. The Commission gave a statement: "The Commission
notes the importance of ensuring that the funds established
for the purpose of decommissioning and waste management activities,
which relate to the objectives of the Euratom Treaty, are
managed in a transparent way, and used only for the said purpose.
In this context, it intends, within the scope of its responsibilities
of the Euratom Treaty to publish an annual report on the use
of decommissioning and waste management funds. It shall pay
particular attention to ensuring the full application of the
relevant provisions of Community law."
69. Some Member Countries oppose the Commission´s draft
Directive because of the conflict it creates with their own
decommissioning funds for their operators.
70. This problem could be solved by a new paragraph 2 in
Article 9: "Member States shall take the appropriate
steps to ensure that adequate financial resources are available
as decommissioning funds to cover the cost of each nuclear
installation following end of operational life. Member States
should report annually on the status of these funds."
71. This wording may solve other problems except the legal
base, but does it create a new problem by destroying the original
idea of independent funds managed transparently?
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