Focus an key legal aspects in the Member States II. : r adioactive waste management

„European Nuclear Energy Law in a Process of Change“Institute for Energy and Mining Law, Ruhr University Bochum, Germany Focus an key legal aspects in the Member StatesII.: radioactivewaste management

Overview on lectures to beheldthisweek (1) • Monday, 25. 11. 2013, 14:00 – 15.30: • Introduction - historical background of the nuclear integration in Europe (CERN, OEEC, Euratom) • Tuesday, 26. 11. 2013, 10:15 – 11:30: • European Atomic Energy Community (Euratom) - nature, characteristic features, relation to the European Union, institutions- powers to create binding legislation (regulations, directives) and to issue binding decisions - overview of Euratom 's policies with regard to the decision making ofthe ECJ - Euratom and existing international treaties

Overview on lectures to beheldthisweek(2) • Wednesday, 27. 11. 2013, 10:15 – 11:30: • Focus an key legal aspects in the Member States I.: nuclear safety, competencies of Euratom vs. competencies of member states - key obligations arisingfrom the current Euratom legislation - perspectives of thefuture developments • Thursday, 28. 11. 2013, 10:15 – 11:30: • Focus an key legal aspects in the Member StatesII.: radioactivewaste management: competencies of Euratom vs. competencies of member states - key obligations arising.from the current Euratom legislation - perspectives of thefuture developments • Friday, 29. 11. 2013, 10:15 – 11:30: • Focus an key legal aspects in the Member StatesIII.: nuclear liability, competencies of Euratom vs. competencies of member states - key obligations arising.from the current Euratom legislation - perspectives of thefuture developments

RadioactiveWaste Management Focus an key legal aspects in the Member StatesII.

Situation in the EU today (1) Currently, fourteen out of the twenty seven Member States of the European Union have nuclear power plants (NPPs) in operation, and a further two have NPPs which are being decommissioned. Member States that have nuclear power plants in operation are: Belgium, Bulgaria, Czech Republic,Finland, France, Germany, Hungary, the Netherlands, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. Italy and Lithuania have only nuclear power plants under decommissioning.

Situation in the EU today(2) Three Member States (Finland, France and the Slovak Republic) are constructing new NPPs. Bulgaria, the Czech Republic, Lithuania, the Netherlands, Romania and the United Kingdom are planning the construction of new units, while also Hungary, Italy, Poland, Slovenia are considering proposals for new build.

Situation in the EU today(3) Nuclear power generation and its associated processes e.g. fuel manufacture, reprocessing, decommissioning of NPPs etc. are to be considered the largest generators of radioactive waste (RAW), mainly in the form of spent fuel (SF). Consequently, any decision concerning long-term operation or the construction of new NPPs will of course need to take into account the effect this will have on the overall RAW situation, since this will lead to the generation of additional operational and decommissioning wastes.

Situationin the EU today(4) While the nuclear power generation and other associated activities are considered as the greatest source of RAW, RAW is also generated as a result of non-power uses of radioactive materials, such as the manufacture of radioactive materials for use in medical and industrial applications, or research facilities such as laboratories, research reactors, etc. Further, two Member States (France and the United Kingdom) operate nuclear military facilities in theirs territory, which also produce a considerable amount of RAW. Thus, RAW is generated in all Member States, even though the quantities involved are often very small compared to countries with NPPs in theirs territory.

RadioactiveWaste: General Overview (1) Referring to the European Commission’s documents, in particular to the Recommendation on a classification system for solid RAW of 1999 and to the Sixth situation report on SF and RAW Management in the European Union of 2008 following categories of waste are to be distinguished in Member States:

RadioactiveWaste: General Overview(2) • Very Low Level Waste (VLLW): The management of this waste requires consideration from the perspective of radiation protection and safety, but the extent of the provisions necessary is limited in comparison to the provisions required for waste in the higher classes (LILW or HLW). This waste category does not necessarily exist in all Member States. The reasons for this are that it may not be cost-effective to demonstrate compliance with clearance levels or there may be issues of public concern regarding the release of such materials.

RadioactiveWaste: General Overview(3) • Short-lived low and intermediate level waste (LILW-SL): This waste contains mainly radionuclides with half-lives of less than 30 years and for which there is negligible heat generation as a result of radioactive decay. The disposal of this category of waste typically takes place in engineered surface or near-surface repositories.

RadioactiveWaste: General Overview(4) • Long-lived low and intermediate level waste (LILW-LL): This waste also produces negligible thermal power but has a concentration of long half-life radionuclides above the limit for classification as short-lived waste. Disposal would normally not take place in near-surface, but in deeper repositories.

RadioactiveWaste: General Overview(5) • High-level waste (HLW): This term refers to waste for which the thermal power must be taken into consideration during storage and disposal. Most HLW results from the reprocessing of SF and is in the form of vitrified residues. SF is also considered as HLW when it is to be disposed of directly. Disposal would normally take place in deep geological repositories.

RadioactiveWaste: Figures (1) Further, the “Seventh Situation Report” estimates the annual production of RAW and SF in the Member States to: • ca. 30 700 m3 of very low level waste (VLLW), most of which arises and is disposed of in France, • ca. 40 900 m3 of short-lived low and intermediate level RAW (LILW-SL), of which almost 70% is routinely disposed of at sites in France and in the United Kingdom, • ca. 38 900 m3 of long-lived low and intermediate level RAW (LILW-LL), which is conditioned for long-term storage with only minor amounts disposed of,

RadioactiveWaste: Figures(2) • ca. 190 m3 of high-level waste (HLW), all of which goes into long-term storage, as no repository exists yet in the Member States, • ca. 2 500 tonnes of SF in a form of heavy metal, which might either be sent to reprocessing or be stored for subsequent direct disposal in a deep geological repository, depending on national policies and decisions of individual electricity companies. Therefore, in total, some 2 500 tonnes of SF in a form of heavy metaland 110 700 m3 of RAW are generated in the European Union each year, ca. 65% of which is very low level waste and short-lived low and intermediate level RAW and 35%long-lived low and intermediate level RAW. It should be mentioned, that these figures does not include RAWs, arising from the operation of military nuclear facilities in France and in the United Kingdom.

RadioactiveWaste: Challenges (1) Concerning the SF, which constitutes the category of waste that implicates the highest level of risks out of all kinds of RAWs, the Member States are facing a choice between reprocessing or disposal. The first option will recover plutonium and uranium for possible re-use, but also generate HLW, LILW-LL and LILW-SL, all of which will require final disposal.

RadioactiveWaste: Challenges(2) Where SF is not to be reprocessed, the normal management option is an extended period of storage. However, disposal should not be confused with storage. Temporary storage of SF is an important stage in their overall management for technological reasons (heat removal and radiation protection). Storage is also needed until such time as disposal facilities (deep geological repositories) become available. However, storage cannot replace disposal as the end point of the management of SF considered as waste.

RadioactiveWaste: Challenges(3) In the long term only disposal can guarantee protection against potential hazards, as it will eliminate the permanent and continuous human activities, such as control, retrieval and repackaging which otherwise would be required for an undefined storage time.

RadioactiveWaste: Challenges(4) Disposal with its passive safety means will minimise or remove the need for human action. Consequently, final disposal of SF forms the reference management scenario. Currently two Member States, Finland and Sweden, are in relatively advanced stage of pursuing this option. However, also other Member States are actively pursuing this option (France, the Czech Republic), while ensuring a safe extended period of storage (50 – 100 years) at the same time. Whatever the management route chosen, the only disposal option for high level waste SF is deep geological disposal. Although most Member States are committed in principle to this option, it is likely that by 2025 only three Member States will have operational deep repositories: Finland, France and Sweden.

RadioactiveWaste: Challenges(5) However, some countries, especially those with small and medium nuclear programmes, may not have the resources or full range of expertise to build their own deep geological repositories. Other countries may deem it wise to consider the possibility of sharing both the costs and the benefits of deep geological disposal with other countries. Therefore, a number of countries consider the option of shared repositoriesfollowing the experience of the SAPIERR project (Strategic Action Plan for Implementation of European Regional Repositories) under the Sixth Framework Programme of the European Commission. Based on the SAPIERR findings, a Working Group has been created in early 2009 to enable the establishment of a European Repository Development Organisation (ERDO), which would contribute to develop the concept of a shared repository as a complement to the national facilities being developed. Currently, Austria, the Netherlands, Poland, Slovakia, Italy, Lithuania and Slovenia do participate in the project.

RadioactiveWaste: Challenges(6) Like the high-level RAW (HLW) and the spent fuel, it is generally acknowledged that the long-lived low and intermediate level RAW (LILW-LL) requires disposal in a deep geological repository. However, it should be mentioned that the short-term hazard presented by conditioned LILW-LL is significantly less than that of HLW. This category of waste arises largely through reprocessing operations and decommissioning. As the disposal route is the same as for HLW, it also follows that in general the progress in terms of disposal routes is similar. In some cases, HLW and LILW-LL can be co-disposed i.e. placed in the same repository.

RadioactiveWaste: Challenges(7) Currently, the short-lived low and intermediate level RAW (LILW-SL) represents the largest volume of waste in all Member States. It is here that policies and practices are most developed. Disposal normally takes place in engineered surface or near-surface facilities. In the sixteen Member States with active or past nuclear power programmes, six currently practice disposal in surface or near surface facilities (Czech Republic, Finland, Hungary, Slovakia, Spain and Sweden). In addition, a number of countries are at various stages of implementation from conception through to final construction.

New Euratom Directive on RadioactiveWaste Management: Way to theDirective (1) In its Conclusions of 10 November 2009 on the Report by the ENSREG, the Council "Calls on … the Commission to continue their cooperative work within ENSREG,…, with the prospect of developing a Community approach in this field, …; further invites the Commission to make full use of ENSREG expertise in the case of proposals for legally binding instruments in the field of safe management of spent fuel and radioactive waste being considered";

New Euratom Directive on RadioactiveWaste Management: Way to theDirective(2) In 2007 the European Parliament, in its Resolutions, states that it "regrets the absence of a legislative corpus on harmonised standards for nuclear safety, the management of radioactive waste" and "calls on the Commission and the Member States to finally make progress on the issue of final disposal";

New Euratom Directive on RadioactiveWaste Management: Way to theDirective(3) • The European Economic and Social Committee: "see an urgent need for Member States utilising nuclear power to put in place national plans for management of nuclear fuel and radioactive waste. Anything else is to be seen as irresponsibly passing on the present generations' obligations to next generations".

New Euratom Directive on RadioactiveWaste Management: Way to theDirective(4) • The text of the Council Directive 2011/70/Euratom of 19 July 2011 establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste reflects these developments and for the first time, it creates a comprehensive framework of minimal requirements for the safe management of spent fuel and radioactive waste in the European Union.

New Euratom Directive on RadioactiveWaste Management: KeyFeatures (1) The operation of nuclear reactors generates spent fuel. Each Member State remains free to define its fuel cycle policy. The spent fuel can be regarded either as a valuable resource that may be reprocessed or as radioactive waste that is destined for direct disposal. Whatever option is chosen, the disposal of high-level waste, separated at reprocessing, or of spent fuel regarded as waste should be considered;

New Euratom Directive on RadioactiveWaste Management: KeyFeatures(2) Each Member State remains free to define its energy mix. All Member States generate radioactive waste from power generation or in the course of industrial, agricultural, medical and research activities, or through decommissioning of nuclear facilities or in situations of remediation and interventions;

New Euratom Directive on RadioactiveWaste Management: KeyFeatures(3) Radioactive waste, including spent fuel considered as waste, requires containment and isolation from humans and the living environment over the long term. Its specific nature, namely that it contains radionuclides, requires arrangements to protect human health and the environment against dangers arising from ionising radiation, including disposal in appropriate facilities as the end location point. The storage of radioactive waste, including long-term storage, is an interim solution, but not an alternative to disposal;

New Euratom Directive on RadioactiveWaste Management: KeyFeatures(4) It should be an ethical obligation of each Member State to avoid any undue burden on future generations in respect of spent fuel and radioactive waste including any radioactive waste expected from decommissioning of existing nuclear installations. Through the implementation of this Directive Member States will have demonstrated that they have taken reasonable steps to ensure that that objective is met;

New Euratom Directive on RadioactiveWaste Management: KeyFeatures(5) The ultimate responsibility of Member States for the safety of spent fuel and radioactive waste management is a fundamental principle reaffirmed by the Joint Convention. That principle of national responsibility, as well as the principle of prime responsibility of the licence holder for the safety of spent fuel and radioactive waste management under the supervision of its competent regulatory authority, should be enhanced and the role and independence of the competent regulatory authority should be reinforced by this Directive;

New Euratom Directive on RadioactiveWaste Management: ScopeofApplication This Directive shall apply to: • all stages of spent fuel management when the spent fuel results from civilian activities; • all stages of radioactive waste management when the spent fuel results from civilian activities; • This Directive shall in principle not apply to: • spent fuel and radioactive waste arising from the use of nuclear energy in defence installations;

New Euratom Directive on RadioactiveWaste Management: Obligations (1) • Member States shall establish and maintain national policies on spent fuel and radioactive waste management. Each Member State shall have ultimate responsibility for management of the spent fuel and radioactive waste generated in it;

New Euratom Directive on RadioactiveWaste Management: Obligations(2) Where radioactive waste or spent fuel is shipped for processing or reprocessing to a Member State or a third country, the ultimate responsibility for the safe and responsible disposal of those materials, including any waste as a by-product, shall remain with the Member State or third country from which the radioactive material was shipped;

New Euratom Directive on RadioactiveWaste Management: Obligations(3) 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;

New Euratom Directive on RadioactiveWaste Management: Obligations(4) The costs for the management of spent fuel and radioactive waste shall be borne by those who generated those materials;

New Euratom Directive on RadioactiveWaste Management: Obligations(5) • Prior to a shipment to a third country, the exporting Member State shall inform the Commission of the content of any such agreement and take reasonable measures to be assured that: • the country of destination has concluded an agreement with the Community covering spent fuel and radioactive waste management or is a party to the Joint Convention; • the country of destination has radioactive waste management and disposal programmes with objectives representing a high level of safety equivalent to those established by this Directive; and • the disposal facility in the country of destination is authorised for the radioactive waste to be shipped, is operating prior to the shipment, and is managed in accordance with the requirements set down in the radioactive waste management and disposal programme of that country of destination programme of that country of destination.

Implementation Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 23 August 2013. They shall forthwith inform the Commission thereof. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. The obligations for transposition and implementation of provisions related to spent fuel of this Directive shall not apply to Cyprus, Denmark, Estonia, Ireland, Latvia, Luxembourg and Malta for as long as they decide not to develop any activity related to nuclear fuel.

Focus an key legal aspects in the Member States II. : r adioactive waste management