The European Commission has been trying unsuccessfully and for a long time to introduce Community legislation on nuclear safety, including waste disposal. Then in 2009, it won the support of the EU Member States, as the Council adopted a Directive establishing a common EU framework for the nuclear safety of nuclear installations. The Convention on Nuclear Safety and the 2006 International Atomic Energy Agency Safety Fundamentals guidelines are voluntary. The Directive incorporated provisions of these instruments into EU legislation, which are now mandatory for all EU Member States. The Directive duplicates the work being carried out within the framework of the International Atomic Energy Agency and gives the Commission scope to interfere with decisions taken by Member States.
On 19 July, the Council adopted a directive establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste resulting from civilian activities, endorsing the Commission proposal from last November, which according to the Commission “is a logical next step after the Nuclear Safety Directive.” Member States now have two years to transpose the Directive into national law. The Directive sets up a EU legal framework for spent fuel and radioactive waste management, ensuring “that Member States provide for appropriate national arrangements for a high level of safety in spent fuel and radioactive waste management to protect workers and the general public against the dangers arising from ionizing radiation.” The Directive will apply to “all stages of the management of civilian spent fuel and radioactive waste from generation to disposal”, it will not apply to waste from extractive industries. The aim is to set up a common EU approach for the storage of spent fuel and radioactive waste.
All EU Member States are members of the International Atomic Energy Agency (IAEA). The IAEA has developed safety standards, which are not legally binding, and its incorporation into national legislation is voluntary. There is an international agreement that covers this area – the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. Under the Directive the international principles and requirements for spent fuel and radioactive waste management will become legally binding and enforceable.
Brussels is once again interfering with Member States’ competences, as the civilian use of the nuclear power as well as management of spent fuel and radioactive waste is a Member State responsibility. The directive stresses that “each Member State shall have ultimate responsibility for management of the spent fuel and radioactive waste generated in it.” Nevertheless, there will be a shifting of the decisions over radioactive waste disposal from the Member States to Brussels. Brussels will interfere with the Member State policies on the management of spent fuel and radioactive waste.
Member States are required to present a national framework for spent fuel and radioactive waste management. The directive lays down specific requirements for the scope, contents and review of national programmes for spent fuel and radioactive waste management. Hence, under the directive Member States are therefore required to establish and maintain a national legislative, regulatory and organisational framework (the 'national framework') for spent fuel and radioactive waste management, and then a national programme shall provide for implementation of the policy on spent fuel and radioactive waste management. The national framework shall include national requirements for the safety of spent fuel and radioactive waste management, as well as a licensing system. It will be forbidden the operation of a spent fuel or radioactive waste management facility without a licence. It shall also include an institutional control system providing for regulatory inspections and reporting. The directive requires member states to ensure that the licence holder is the main responsible for the safety of spent fuel and radioactive waste management and such responsibility cannot be delegated. In fact, the national framework shall also provide for enforcement actions, including suspension of activities or revocation of a licence. The national framework shall require that licence holders provide for and maintain adequate financial and human resources to fulfill their obligations. Moreover, Member States are required to establish an independent competent regulatory authority in the field of safety of spent fuel and radioactive waste management, which shall have the necessary legal powers and human and financial resources to fulfill its obligations provided in the national framework. The competent regulatory authority would supervise licence holders while assessing and verifying the safety of their activities and facilities. Moreover, member states must ensure that sufficient financial resources are available for spent fuel and radioactive waste management, taking into account the responsibility of radioactive waste producers ('polluter-pays-principle').
Furthermore, within the national framework, Member States are also required to establish, implement and keep updated “national programmes” for the management of spent fuel and radioactive waste. The directive obliges all Member States to present to the Commission by 2015, national programmes including plans for the development, the construction and financing of final repositories for spent fuel and radioactive waste. Such national programmes shall therefore cover all types of spent fuel and radioactive waste under member states´ jurisdiction and all stages from generation to disposal. They shall include an inventory of all spent fuel and radioactive waste and previsions of future quantities, indicating the location and amount of the material as well as the level of hazard. They shall also provide for plans and technical solutions from generation to disposal and for the post-closure period of a disposal facility. Such national programmes shall therefore contain plans for the construction and the management of disposal facilities, providing a “concrete time table” for the construction and the description of all the activities necessary to implement the disposal solutions as well as costs assessments and the description of the financing schemes. Such plans shall also be financed by national funds. The UK government is concerned at the substantial costs, which will be involved in implementing the directive.
The original proposal would have required for the radioactive waste to be disposed in the Member State in which it was generated. The Minister of State at the Department for Energy & Climate Change, Charles Hendry, pointed out to the European Scrutiny Committee that such requirement “would have prevented radioactive waste and processed fuel treated at Sellafield and Dounreay from being returned to the country from which they had come." The adopted directive allows radioactive waste to be sent to other Member States or third countries, subject to certain conditions. The directive provides “Radioactive waste shall be disposed of in the Member State in which it was generated, unless at the time of shipment an agreement, taking into account the criteria established by the Commission in accordance with Article 16(2) of Directive 2006/117/Euratom, has entered into force between the Member State concerned and another Member State or a third country to use a disposal facility in one of them.” Member States may agree between themselves to use disposal facilities in one of them.
According to the Commission “deep geological disposal is the most appropriate solution for the final disposal of high level nuclear waste.” Member States are therefore urged to bury their nuclear waste deep underground. It is important to mention that Member States must notify their national programmes as well as any subsequent significant changes to the Commission. Unsurprisingly, the Commission may request a revision that shall be implemented by the Member States. Hence, the Commission that favours 'deep geological repositories' will be able to require changes to member states national programmes.
Moreover, Member States would be required to every 10 years, self-assess and ask for international peer review of their national framework, competent regulatory authority, national programme and its implementation.
