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THE NUCLEAR WASTE DIRECTIVE: CONTENTS AND SOME REFLECTIONS ON ITS PEER-REVIEW MECHANISM

Nuria Prieto Serrano1

ENRESA, Spain

INITIAL NOTE:

For clearness, hereinafter the following terms will be used:

“Nuclear Waste Directive”: Council 2011/70/EURATOM of 19 July 2011 establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste; OJ L 199/48.

“2009 Nuclear Safety Directive”: Council Directive 2009/71/Euratom of 25 June 2009 establishing a Community framework for the nuclear safety of nuclear installations, OJ L 172/18.

“2014 Amendments”: Council Directive amending Directive 2009/71/Euratom establishing a Community framework for the nuclear safety of nuclear installations. Not published to date of drafting this study, made public through the web of the European Commission2.

“Joint Convention”: Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (IAEA INFCIRC/546, 24 December 1997).

“Convention on Nuclear Safety”: IAEA INFC1RC/449, 5 July 1994 “EC”: European Commission

Abstract

This paper intends to be an introduction to the Nuclear Waste Directive, not only describing its provisions, but also indicating its added value as compared with the international regime and finally focusing on one aspect which, in the opinion of the author, becomes very challenging in the transposition process of this Directive: the organization of peer-reviews.

Introduction

In the European Union, the situation of radioactive waste management varies very much from Member State to Member State. All Member States generate radioactive waste, either in nuclear power production and/or as a result of radioisotope applications in medicine, industry, agriculture, research and education; and to date they are all parties to the Joint Convention. However, the completeness of their national framework for radioactive waste management and the magnitude of their radioactive waste management programmes are very different depending on their characteristics and energy policies. A number of reasons well explained in the Impact Assessment text of the Nuclear Waste Directive 3 lead the EC to present a proposal of, and to the Council to adopt it.

The contents of the Waste Directive

Values, Scope and Definitions

1 Ms Nuria Prieto Serrano is a lawyer in ENRESA, the public company in charge of spent fuel and radioactive waste management in Spain, since 2003. She has been a Seconded National Expert in the European Commission during the years 2010 to 2012 (DG ENER, Unit D2). Currently she is the Chairperson of the INLA Working Group 5 on “Radioactive Waste”.2 http://ec.europa.eu/energy/nuclear/safety/safety_en.htm 3 Commission Staff Working Document accompanying the revised proposal for a Council Directive (Euratom) on the Management of Spent Fuel and Radioactive Waste, SEC(2010) 1289 final, 3.11.2010

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If we had to determine what fundamental values are reflected in the Nuclear Waste Directive, we would refer to a triple “pillar”: safety, responsibility towards future generations and transparency (see Article 1, Subject matter, where this triple concept corresponds to the first three paragraphs, and the fourth paragraph declares its character supplementary to the basic safety standards).

The Nuclear Waste Directive applies to all stages of management of spent fuel and radioactive waste, where “all stages” means handling, pretreatment, treatment, conditioning, storage and disposal of radioactive waste, excluding off-site transportation (Article 3, definition of “radioactive waste management”). The following types of waste are excluded from the scope of application (Article 2):

1. Radioactive waste not arising from civilian activities; i.e. military waste, in line with European jurisprudence4.

2. Waste from extractive industries which may be radioactive and falls within the scope of Directive 2006/21/EC. The rules of radiation protection are applicable to these wastes.

3. Authorized releases, as stated by the respective national nuclear regulators in accordance with the rules of radiation protection at national and Community level.

The definitions under Article 3 are not identical, but in line with those of the Joint Convention and the corpus of Euratom law, mainly the 2009 Nuclear Safety Directive. In particular, the definition of “nuclear installation” under the 2009 Nuclear Safety Directive covers inter alia spent fuel storage facilities and “storage facilities for radioactive waste that are on the same site and are directly related to nuclear installations”, but not all facilities devoted to radioactive waste management. This means that, for example, disposal facilities are not nuclear installations from the point of view of the 2009 Nuclear Safety Directive. In the Nuclear Waste Directive, any facility or installation the primary purpose of which is radioactive waste management is considered as a “radioactive waste management facility”; the Directive also applies to disposal facilities, as it concerns in a general manner facilities and activities related to radioactive waste management.

General principles, including the export control regime

Article 4 of the Nuclear Waste Directive establishes the general principles of spent fuel and radioactive waste management. The State’s ultimate responsibility for management implies inter alia that the State must not only implement a national framework (including policies and strategies), but also take care of the waste where the generator does no longer exist or is impossible to determine (this specific obligation, as reflected in article 21.2 of the Joint Convention, is however not literally reflected in the Directive). This responsibility is not only or a factual nature, but also of an economic nature, so that States are obliged to contemplate in its funding systems provisions for financing “exceptional cases” of management such as premature closure of facilities or radioactive waste, the generator of which does not exist anymore5. This kind of responsibility is understood “without prejudice” of the prime responsibility of the licence holder (see recital 25).

4 Commission vs. United Kingdom, C-61/03 and C-65/04.5 ENSREG Final Guidelines for MS Reports to the Waste Directive, paragraph 63: http://www.ensreg.eu/sites/default/files/HLG_p(2014-27)_137%20Final%20guidelines%20for%20MS%20Reports%20to%20the%20Waste%20Directive.pdf

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The State’s ultimate responsibility and prime responsibility of the licence holder are based on concepts developed by the IAEA. Remarkably, the English edition of the Nuclear Waste Directive makes a distinction between the “prime” responsibility of the licence holder in the sense of safety (Article 7.1) and its “primary” responsibility in a wider sense (in a general manner covering the liabilities connected to the waste generation, for example also financial liabilities, Article 5.1.f).

A manifestation of the ultimate responsibility of the State is reflected in Article 4(2): Where radioactive waste or spent fuel is shipped for processing or reprocessing to a Member State or 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.

Another manifestation of it can be found in the exports control regime. The original intention of the EC in the first draft proposal of the Nuclear Waste Directive would have been to establish an export ban for spent fuel and radioactive waste, in line with the existing ban in hazardous waste6. However, this proposal was not accepted at the level of the Atomic Questions Group of the EU Council, and the final text resulting from those negotiations establishes the following:

- The general principle shall be the disposal in the Member State where the radioactive waste was generated, or the disposal shared upon agreement of several Member States.

- An exception to this principle is the possibility to conclude an international agreement with a third country, being this a party to the Joint Convention, provided that this country has equivalent levels of safety to those established by the Nuclear Waste 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”. Taking into account that no disposal sites are operative in the world for high level waste, this is de facto a ban on the export of such type of waste.

- An “exception to the exception” is the return of sealed sources to the manufacturer and the agreements of return of spent fuel used for research to USA or the Russian Federation in the frame of the Global Threat Reduction Initiative (see recital 15).

- A further exception was foreseen in respect of the shared facility of Slovenia and Croatia (see recital 36), which at the time of the adoption of the Nuclear Waste Directive was not a member of the EU yet –this exception no longer being such-.

Before this control regime was adopted, the only constraints for the export of radioactive waste where those based on the Joint Convention (art. 27 (2): A Contracting Party shall not licence the shipment of its spent fuel or radioactive waste to a destination south of latitude 60 degrees South for storage or disposal) and on the Shipments Directive7 (art. 16), which prohibits the export of radioactive waste to African, Caribbean or Pacific countries, in line with the Cotonou Agreement8, to a destination south of latitude 60 south or to a third country which does not have the resources to manage the radioactive waste safely, “in the opinion of the competent authorities of the Member State of origin”. The regime has been, thus, very much reinforced.6 Reference to Regulation (EC) No 1013/2006 of 14 June on shipments of waste and the so called “Basel Ban”: see http://ec.europa.eu/environment/waste/shipments/index.htm 7 Council Directive 2006/117/Euratom of 20 November 2006 on the supervision and control of shipments of radioactive waste and spent fuel8 http://ec.europa.eu/europeaid/where/acp/overview/cotonou-agreement/index_en.htm

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The rest of principles enumerated in Article 4 of the Nuclear Waste Directive are:

1. Waste minimization2. Consideration of the interdependencies3. Safety in the long term with passive safety features4. Graded approach5. Polluter pays 6. Evidence-based and documented decision-making process

Of these, principles number 1 and 2 are contained in very similar terms in the Joint Convention9. The waste minimization is defined by the IAEA as “the process of reducing the amount and activity of radioactive waste to a level as low as reasonably achievable, at all stages from the design of a facility or activity to decommissioning, by reducing waste generation and by means such as recycling and reuse, and treatment, with due consideration for secondary as well as primary waste (…) [The concept] should not be confused with volume reduction”10. At a later stage in this study, further reference will be made to the concept of “interdependencies”.

The need of passive safety features in the long term (i. e. making use of components, whose functioning does not depend on an external input such as actuation, mechanical movement or supply of power11) is not present in the Joint Convention in the same extend, although it is mentioned in the IAEA general safety requirements for predisposal management of waste12, and among the specific safety requirements that the IAEA enumerates for the disposal of radioactive waste13.

The graded approach is defined by the IAEA as “a process or method in which the stringency of the control measures and conditions to be applied is commensurate, to the extent practicable, with the likelihood and possible consequences of, and the level of risk associated with, a loss of control”14 and is contemplated in the IAEA fundamental safety principles formulated in 200615.

The polluter pays principle is not contained in the Joint Convention, which requires the Contracting Parties to ensure the adequacy and availability of the funds for management, decommissioning and institutional controls after closure, regardless of their private or public nature16.

The evidence-based and documented decision-making process justifies the need of a safety-case17, which will be imposed as a requirement for the license holder in Article 7(3) under the

9 Joint Convention, Articles 4 for spent fuel and 11 for radioactive waste.10 Minimization, Waste, IAEA Safety Glossary 2007 Edition11 Passive component, IAEA Safety Glossary 2007 Edition12 Predisposal Management of Radioactive Waste, GSR Part 5, IAEA 2009; See 1.8 and 4.13.13 Disposal of Radioactive Waste – SSR, IAEA 2011; Requirement 5: Passive means for the safety of the disposal facility (3.21–3.25).14 IAEA Safety Glossary 2007 Edition15 Fundamental Safety Principles, SF-1 IAEA 2006.16 Article 22, Human and Financial Resources: “adequate financial resources are available to support the safety of facilities for spent fuel and radioactive waste management during their operating lifetime and for decommissioning”, and “financial provision is made which will enable the appropriate institutional controls and monitoring arrangements to be continued for the period deemed necessary following the closure of a disposal facility”.17 Safety case: A collection of arguments and evidence in support of the safety of a facility or activity , (…) [It] will normally include the findings of a safety assessment, and will typically include information (including supporting evidence and reasoning) on the robustness and reliability of the safety assessment and the assumptions made therein . IAEA Safety Glossary 2007 Edition

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more confusing name of “safety demonstration” (see also recital 34 of the Directive). This aspect will be further explained in this study.

The national framework

The national framework as established by Article 5 of the Directive is the national legislative, regulatory and organizational framework that allocates responsibility and provides for coordination between relevant competent bodies. This national framework must be subject to continuous improvement taking into account operating experience, insights gained from evidence which fundaments the safety cases and the development of relevant technology and research. It includes a number of elements:

1. A national programme;2. National arrangements for safety;3. A system of licensing, including the prohibition of spent fuel or radioactive waste

management activities without a license4. A system of control, a management system, regulatory inspections, documentation and

reporting obligations, also contemplating the post-closure periods of disposal facilities;5. Enforcement actions6. Allocation of responsibility to the bodies involved in the different steps; giving primary

responsibility to the generators of the spent fuel or radioactive waste or, under specific circumstances, to a licence holder to whom this responsibility has been entrusted by competent bodies;

7. National requirements for public information and participation;8. A financing scheme for spent fuel and radioactive waste management

The concept of “national framework” is directly inspired by the Joint Convention, where Article 19 establishes similar requirements for the “legislative and regulatory” frameworks of the Contracting Parties, with the exception of three elements –the national programme, the transparency requirements and the financing scheme-, which are not present in the “frameworks” as regulated by the Joint Convention. In a parallel way, the 2009 Nuclear Safety Directive also develops the concept of national framework, this time inspired by the Convention on Nuclear Safety. Remarkably, neither the 2009 Nuclear Safety Directive, nor the 2014 Amendments, have included in the national framework the requirements for public information and participation18.

The interpreters of the Nuclear Waste Directive in different fora have conceived the “national framework” of Article 5 as the necessary “infrastructure”, an intermediate layer between the general principles established in Article 4 and the political solutions that the national programme provides. The natural link between the national framework of Article 5 and the national programme regulated in Articles 11 and 12, is the fact that the national programme is the first of the requirements that the national framework must have.

18 The 2009 Nuclear Safety Directive includes essentially the elements of the “national framework” of the Nuclear Waste Directive, except, as has been explained, the national programme, the allocation of responsibilities, the transparency requirements and the financing schemes. Taking into account that the national programmes and the provisions on decommissioning funding are specific for radioactive waste, one would have expected that the two remaining elements (allocation of responsibilities and transparency) would have been incorporated in the 2014 Amendments. However, only the allocation of responsibilities has been introduced. http://ec.europa.eu/energy/nuclear/safety/safety_en.htm

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Figure 1: The pyramid of contents of the Nuclear Waste DirectiveSource: NAPRO Guidelines for the establishment and notification of National Programmes,http://ec.europa.eu/energy/nuclear/forum/risks/doc/waste_disposal/docs/napro_guide_web.pdf

Obligations in respect of the regulatory body and the license holders

Article 6 of the Nuclear Waste Directive sets out the obligation for the Member States to establish and maintain a competent regulatory authority in the field of safety of spent fuel and radioactive waste management. The regulator must be “functionally separate from any other body or organization concerned with the promotion or utilization of nuclear energy or radioactive material, including electricity production and radioisotope applications, or with the management of spent fuel and radioactive waste, in order to ensure effective independence from undue influence on its regulatory function”. It must be given the legal powers and human and financial resources necessary to fulfil its obligations. The formulation is very similar to that of the 2009 Nuclear Safety Directive and in essence similar to that of the Joint Convention (Article 20), with an important addition in the Nuclear Waste Directive: while both the Directive and the Joint Convention require “effective independence”, only the Directive makes clear that this consists of being “functionally separate from any other body (…) concerned with the promotion or utilization of nuclear energy”. This requirement has still been reinforced in the 2014 Amendment.

Obligations for the license holders are set out in Article 7 of the Nuclear Waste Directive. The first paragraph of this Article entrusts the license holder with prime responsibility for safety that cannot be delegated, in similar (but not equal) terms to the Joint Convention (art. 21). As has been said, the prime responsibility of the license holder for safety is the very first of the Fundamental Safety Principles as compiled by the IAEA in 200619.

The following two paragraphs of this Article do not have a correspondence in the Joint Convention and only partially in the 2009 Nuclear Safety Directive, although the 2014 Amendments have elaborated further this requirement. On the one hand, license holders must “regularly assess, verify and continuously improve, as far as is reasonably achievable, the safety of the radioactive waste and spent fuel management facility or activity in a systematic and verifiable manner. This shall be achieved through an appropriate safety assessment, other arguments and evidence”. The concept of safety assessment is the one elaborated by IAEA in the corresponding General Safety Requirements20.

19 IAEA, SF-1, 2006: Fundamental Safety Principles.20 IAEA, GSR-4, 2009: Safety Assessment for Facilities and Activities.

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Furthermore, paragraph (3) imposes the safety demonstration as a part of the licensing process. Although there seems to be no common understanding under the term “safety demonstration”, it is assumed to be equivalent to the “safety case” as defined by the IAEA 21. In any case, the application of the safety demonstration is measured under the yardstick of the graded approach as a general principle, as the Recital 34 of the Nuclear Waste Directive explains.

The concept of “integrated management systems” is defined by the IAEA Glossary as “A single coherent management system in which all the component parts of an organization are integrated to enable the organization’s objectives to be achieved”22. This concept supersedes that of “quality assurance” established in Article 23 of the Joint Convention. The same Glossary defines “quality assurance” as “the function of a management system that provides confidence that specified requirements will be fulfilled”, and lately there is a full identification between the concepts of “quality assurance” and “management system” (again, the Glossary: “The term management system has been adopted in the revised standards instead of the terms quality assurance and quality assurance programme”). This means that the element of “being integrated”, i.e. the quality of being “single and coherent” and interlinking “all the component parts of an organization to enable the objectives to be achieved”, is an addition of the Nuclear Waste Directive. Remarkably enough, neither the 2009 Nuclear Safety Directive nor the 2014 Amendments use the term “integrated” when requesting a management system in this respect (Article 6). The apparent conclusion is that the adjective “integrated” in the context of radioactive waste makes reference to the necessary interdependencies in the chain of radioactive waste management, where all the stages from generation to disposal are necessarily interrelated and determinant for each other (see recital 30 of the Nuclear Waste Directive and IAEA GSR-323).

To conclude with this topic: the “management system” is quoted in the Nuclear Waste Directive in the context of Article 5, where the national framework needs to include “(d) a system of appropriate control, a management system, regulatory inspections”, etc. The meaning of “management system” in the more general context of the national framework (Art. 5) is different to that of the “integrated management system” as an obligation of the license holder (Art. 7). However, both concepts are linked, because the performance of the license holder is part of the wider management system at the level of the national framework and in particular within the national programmes.

The provision for the license holder to provide for and maintain adequate financial and human resources finds a direct correspondence in the Joint Convention (art. 22) and in the 2009 Nuclear Safety Directive.

Article 8 of the Nuclear Waste Directive imposes for all parties involved in the management of spent fuel and radioactive waste –not only the operators- the obligation to provide for and maintain adequate financial and human resources. This is to be understood in a wide sense, including efforts for research and development (see recitals 38 and 39).

The question of the decommissioning funds21 Ms. Ute Blohm-Hieber, Head of the relevant Unit at the European Commission at the time of negotiations of the Nuclear Waste Directive, affirms so in her article “The Radioactive Waste Directive: a necessary step in the management of spent fuel and radioactive waste in the European Union”. OECD-NEA, NLB n. 88 (Volume 2011/2), quoting, as a reference, the IAEA SSG-23 “The safety case and safety assessment for radioactive waste disposal” (still as a draft as she wrote her article) and the IAEA SSR-5 “Disposal of Radioactive Waste”.22 IAEA Safety Glossary 2007 Edition23 IAEA, GSR-3, 2006: The management system for facilities and activities

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The reader might be familiar with the failed attempt of the EC to adopt the two Safety Directives in 2003 in the experience known as “Nuclear Package”24. The ambitious plan of the EC to regulate on decommissioning funding was one of the reasons for the failure of these proposals25. As a consequence, the EC had to be satisfied by adopting a Recommendation in 200626 accompanied by a Guide in 2010. In addition to this, the EC emits periodically Communications to the European Institutions and working documents about the use of decommissioning funds –the latest, in 2013, comparing Member States practices with the measures proposed in the Recommendation27.

In this context, the provisions on funding for decommissioning and waste management in the Nuclear Waste Directive are limited to Article 9, which makes this brief statement: “Member States shall ensure that the national framework require that adequate financial resources be available when needed for the implementation of national programmes referred to in Article 11, especially for the management of spent fuel and radioactive waste, taking due account of the responsibility of spent fuel and radioactive waste generators”. This provision is to be understood in the context of the polluter pays principle as established by Article 4 and the aforementioned Recommendation and documents (and by the fact that financial provisions are also a part of the national framework, art. 5.1.h, and national programmes, art. 12.1.h and i)

The obligations on transparency

Article 10 of the Nuclear Waste Directive establishes two kinds of transparency obligations (see recital 31). The first of them is about the information that the Member States must provide to the workers and the general public, in particular the regulatory body, in accordance with national and international law and “provided that this does not jeopardise other interests such as, inter alia, security”. This first paragraph is drafted in almost identical terms to the corresponding article in the 2009 Nuclear Safety Directive –the 2014 Amendment has amplified it to a big extend-. The second paragraph deals with the right of public participation which must be made “effective” in the decision-making process regarding spent fuel and radioactive waste management. This second paragraph, not contemplated in the 2009 Nuclear Safety Directive, but already present in the 2014 Amendments, was considered as a novelty in the Nuclear Waste Directive and presented as the way in which the principles of the Aarhus Convention were made applicable under the Euratom Treaty28. Indeed, the Nuclear Waste Directive went beyond the 2009 Nuclear Safety Directive in the purpose for transparency, adding this important element to the subject-matter of Article 1(3).

24 General information about the “Nuclear Package” at http://www.eu-energy.com/Nuclear%20package.html See also the article by Derek M. Taylor, who was Head of the relevant Unit at the European Commission at the time of the proposals: Nuclear safety in an enlarged European Union. The European Commission’s “Nuclear Package” available at http://ec.europa.eu/energy/nuclear/studies/doc/other/nuclear_engineer_dmt.pdf 25 Nuria Prieto Serrano: “La seguridad nuclear en la era de las revisiones inter-pares y las autoevaluaciones: la nueva directiva de seguridad nuclear”, Revista de Derecho Comunitario Europeo, n. 37, September-December 2010 (English abstract, Nuclear Safety in the Era of Peer Reviews and the Self-assessments: the New Directive on Nuclear Safety) available at http://www.cepc.gob.es/gl/publicaci%C3%B3ns/revistas/revistas-electronicas?IDR=4&IDN=1267&IDA=35690).26 Commission Recommendation of 24 October 2006 on the management of financial resources for the decommissioning of nuclear installations, spent fuel and radioactive waste (2006/851/Euratom).27 The Recommendation, the Guide and the documents quoted are all available at http://ec.europa.eu/energy/nuclear/decommissioning/decommissioning_en.htm 28 Ute Blohm-Hieber: The Radioactive Waste Directive: a necessary step in the management of spent fuel and radioactive waste in the European Union. OECD-NEA, NLB n. 88 (Volume 2011/2).

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The reason for the special regard to public participation in the area of waste management, which was ab initio not regulated in “pure” nuclear safety, is the fact that the site selection of facilities becomes specially delicate in the case of long-term storage and disposal sites, where the active involvement of the stakeholders, and in particular the municipalities, is key in the consideration that these facilities will long for decades, if not “the eternity”29. This has converted the site selection for storage and disposal facilities in the spearhead of the studies of formula for public participation in the nuclear sector (even in the energy sector, as the recent E-Track initiative shows30), with important works on this issue conducted by the OECD-NEA, the European Commission and other relevant fora.

At least! The national programs

If we had to determine which is the most important element of the Nuclear Waste Directive, the one that makes a unique instrument of it and brings real added value to the international regulation lead by the Joint Convention (apart from the fact that it converts an international obligation into EU acquis), that would be the figure of the national programmes. In the spirit of recital 28 (Member States should establish national programmes to ensure the transposition of political decisions into clear provisions for the timely implementation of all steps of spent fuel and radioactive waste management from generation to disposal), the national programmes constitute an element of the national framework (art. 5) and must be adopted and regularly reviewed and updated by the Member States (art. 11), being subject to peer review (art. 14.3). In the pyramid already represented as Figure 1, the national programmes would stand in the basis, the layer of the “real solutions” in practice:

Figure 1: The pyramid of contents of the Nuclear Waste DirectiveSource: NAPRO Guidelines for the establishment and notification of National Programmes,http://ec.europa.eu/energy/nuclear/forum/risks/doc/waste_disposal/docs/napro_guide_web.pdf

Quoting (again) the European Commission: “No matter how developed the legal and organizational framework of a State might be, the safe and responsible management of spent fuel and radioactive waste can only be achieved once the government is committed to develop policies and ensure their transposition into practical long-term solutions”31. In a sentence vaguely inspired by Saint Paul (Corinthians, “The Way of Love”): “If I have an impeccable legal system with a competent nuclear regulator, efficient and safe operators and adequate funding… but I don’t have the policy, I am nothing”. This idea is in the willingness of the EC since at least one decade, and was already in the spirit of the original “Nuclear Package” until it has finally 29 Reference to the documentary film “Into the Eternity”, directed by Michael Madsen: http://www.intoeternitythemovie.com/ 30 http://www.nuclear-transparency-watch.eu/media/e-track.html 31 Ute Blohm-Hieber, article referred, NLB n. 88 (Volume 2011/2).

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crystallized. Ensuring that the Member States have a policy embodied in a national programme subject to European control means that the times for “wait and see” policies have finalized32.

Article 12 of the Nuclear Waste Directive enumerates the elements that the national programmes must have:

1. The overall policy objectives;2. Significant milestones and clear timeframes for their achievement 3. Inventory (…) in accordance with appropriate classification of the radioactive waste4. The concepts or plans and technical solutions for spent fuel and radioactive waste

management from generation to disposal;5. The concepts or plans for the post-closure period of a disposal facility’s lifetime;6. The research, development and demonstration activities needed;7. The responsibility for the implementation of the national programme and the key

performance indicators to monitor progress;8. An assessment of costs 9. The financing scheme(s) in force;10. The transparency policy or process;11. If any, the agreement(s) concluded with a Member State or a third country, including on

the use of disposal facilities.

A further precision made in the Nuclear Waste Directive is that the national programme may be contained in a single reference document or a set of documents (Recital 28).

The uniqueness of the national programme as a mandatory element in this Directive, that confers the Nuclear Waste Directive not only a purely legal, but also a political dimension, does not mean that the figure of “national programmes” were not developed in other international instruments. In particular, the IAEA has developed the Guide “Policies and Strategies for Radioactive Waste Management”33, distinguishing between the terms “policy” (particular goals or requirements for the safe management of spent fuel and radioactive waste) and “strategy” (the ways and methods used to implement the policy) and acknowledging that a “national plan” is, in fact, a combination of both. It explains a series or reasons for which it is desirable to have explicit national policy and strategy statements and provides an indication of what might be contained in them. However, neither this Guide nor any other international instrument constitutes a mandate for the States to adopt and regularly review national programmes for the management of their spent fuel and waste.

The originality of the national programmes as contemplated in the Nuclear Waste Directive lies on the fact that, from now, this obligation is a part of the EU acquis, with the possibility for the EC, as guardian of the Treaties, to deliver a reasoned opinion if it considers that a Member State has failed to fulfil an obligation under EU law, and ultimately to bring the matter before the Court of Justice of the European Union (Article 258 TFEU).

A Working Group called “NAPRO” has been constituted in the European Nuclear Energy Forum (ENEF)34 and has elaborated Guidelines for the establishment and notification of

32 See Impact Assessment of the Waste Directive: Brussels, 3.11.2010, SEC(2010) 1289 final.33 No. NW-G-1.1, IAEA 200934 ENEF gathers all relevant stakeholders in the nuclear field: governments of the 27 EU Member States, European Institutions including the European Parliament and the European Economic and Social Committee, nuclear industry, electricity consumers and the civil society. See http://ec.europa.eu/energy/nuclear/forum/forum_en.htm

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national programmes35. This document is of high interest, in particular for those Member States which have not developed such programmes until now. It facilitates the understanding of the different elements enumerated in Article 12 and proposes a general structure for a national programme.

The NAPRO Guidelines focus very much in the concept of “interdependencies” to explain how the different steps of radioactive waste management are interrelated, in such a way that every step in the different route needs to be perfectly in accordance with preliminary and subsequent steps, leading to disposal in an adequate repository. In the following diagram, the different routes would correspond to different waste streams and possibly to different waste types:

Figure 2: Management routes to illustrate interdependencies in radioactive waste managementSource: NAPRO Guidelines for the establishment and notification of National Programmes,http://ec.europa.eu/energy/nuclear/forum/risks/doc/waste_disposal/docs/napro_guide_web.pdf

The concept of “interdependencies” is key in the elaboration of national programmes, as also the Guidelines elaborated by ENSREG show36. In these Guidelines, it is further explained how the decisions taken at every step of the management route are conditioned by information flows taking place in a way that is not only unidirectional (from generation to disposal) but indeed bidirectional. That would mean that the characteristics of the disposal facilities available determines the steps of the management process from the very moment where the waste is generated and recorded in the inventories. Thus, a more realistic representation of the interrelation of decisions taken in the waste management process would be according to this diagram:

35 http://ec.europa.eu/energy/nuclear/forum/risks/doc/waste_disposal/docs/napro_guide_web.pdf 36 ENSREG is a high level group of senior officials from the Member States’ regulatory authorities or nuclear safety authorities. Senior representatives of the European Commission are also part of the group. In addition, Council of the European Union, Switzerland, Norway, and the International Atomic Energy Agency. It was constituted by Commission Decision of 17 July 2007 (2007/530/Euratom). See Final Guidelines for MS Reports to the Waste Directive at http://www.ensreg.eu/sites/default/files/HLG_p(2014-27)_137%20Final%20guidelines%20for%20MS%20Reports%20to%20the%20Waste%20Directive.pdf

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Figure 3: Information flows in the decision making process in radioactive waste managementSource: ENSREG Final Guidelines for MS Reports to the Waste Directive http://www.ensreg.eu/sites/default/files/HLG_p(2014-27)_137%20Final%20guidelines%20for%20MS%20Reports%20to%20the%20Waste%20Directive.pdf

The following quote from this document describes very well the referred mechanism:

“While “material flows” are in principle downstream, i.e. from the waste generation step until disposal, both upstream and downstream flows have to be managed to effectively deal with the interdependencies of all radioactive waste management steps. Downstream “information flows” can inform e.g. the development of disposal solutions for existing waste streams and for a prospective waste inventory. Upstream “information flows” can inform e.g. the waste characterisation and processing programmes in accordance with waste disposal requirements.

ENSREG understands these interdependencies to be at different levels, such as:

the technical level (e.g. adequate waste characterisation and waste processing for storage and disposal);

the financial level (e.g. assessment and generation of the financial means required for all subsequent management steps); and,

the legal level (e.g. definition of responsibilities and accountabilities of various actors at subsequent management steps, with possible transfer of responsibilities between parties).”

Thus, elaborating a national programme can be compared with assembling a complex puzzle where all the pieces at all technical, financial and legal level must fit.

The European Commission’s review of national programmes

The national programme must be notified to the Commission at any date from the adoption of the Directive, but not later than 23 August 2015 (Article 15.4). This communication is, indeed, the first but not the only one foreseen. Article 13 of the Directive requires Member States to notify to the Commission their national programmes “and subsequent significant changes” (which does not imply a regular periodicity), and confers to the Commission the right of requesting clarification “and/or express its opinion on whether the content of the national programme is in accordance with Article 12” within six months of the date of notification. The

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Member State has in turn six months to provide the requested clarification and/or inform the Commission of any revision of the national programme. Reading paragraph 4 of Article 13 a sensu contrario, if in this process the Commission were not convinced by the policy adopted by the Member State, it could deny the provision of financial or technical assistance to the Member State. As a matter of fact, the Commission has the power to judge upon the completeness of the national programme in accordance with the Directive and within the limits of this Article 13, which is not per se a right to question the national policies (as far as they comply with the general principles established in the Directive).

The peer-review processes

The provisions of the Nuclear Waste Directive, like of any other Directive, need to be transposed into national law. Article 15 of the Nuclear Waste Directive requires Member States to perform this task before 22 August 2013 and inform the European Commission thereof. As has been said, for the communication of the national programmes the Directive establishes a different date: August 2015 at the latest.

The reporting obligations are contained in Article 14 of the Directive. For the first time by 23 August 2015, and every 3 years thereafter (that is to say, this time periodically), Member States must submit a report to the Commission on the implementation of the Directive. On the basis of those reports, the Commission submits to the European Parliament and the Council a report on progress made and an inventory of radioactive waste and spent fuel present in the territory of the EU and future prospects.

The reports that must be delivered in the context of Article 14.2 should not be confused with the notification of the national programmes already described for Article 13. While the reporting obligations take place on a regular basis (every three years), the notification of the national programmes is requested once by August 2013 and afterwards only if significant changes are introduced. In one case (Article 14.1), the Member States are expected to prepare national reports covering, preferably Article by Article, the scope of the whole Directive and explaining how its provisions have been transposed37.

The reports referred to in Article 14.2 are thought to be the evolution of the so called “Situation Reports” that up to now the Commission has submitted to the European Institutions38, and that also served for the purpose of communication to the public. Up to now, the Situation Reports have focused mainly on the inventories –in the last cases, not only present but also future prospects of generation of waste-; they have also provided valuable information about the institutions and bodies in charge of waste management in the Member States. With this mandate, their scope becomes wider as it involves the whole provisions of the Nuclear Waste Directive and major space for comparison and analysis is open. No such report has been drafted to date, but we can expect to find in them wider comparisons of the national framework and policies of the Member States.

As regards the communication of inventories, the fact that the Member States have different national classification systems in place does not help in the data analyses, as the European

37 See ENSREG Guidelines referred. 38 The Situation Reports were first developed as a part of the “Community plan of action in the field of radioactive waste”. For the last of them, namely the Seventh Situation Report, see SEC(2011) 1007 final under http://ec.europa.eu/energy/nuclear/waste_management/doc/seventh_situation_report_corr_version_without_cover_page.pdf

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Commission and the different fora have acknowledged39. Up to now, a Commission Recommendation of 1999 has been used for the purpose of communicating inventories in the Situation Reports40; but from now on, the preferred reference will be the IAEA Safety Guide of 200941.

To finish this description of the Directive, the obligations of performance of self-assessments and submissions to peer-review are contained in Article 14.3 and must take place periodically, at least every ten years. The subjects of assessment and peer-review shall be the national framework, competent regulatory authority, national programme and its implementation (whereas the English version of the Directive seems to make a distinction, as if the national programme would not have to be necessarily subject to peer-review42; however, this distinction seems to be of no significance for ENSREG43). The outcomes of any peer review shall be reported to the Commission and the other Member States, and may be made available to the public where there is no conflict with security and proprietary information.

Some challenges in the peer review processes

The workload involved in drafting reports and participating in peer-reviews: a challenge or a problem? To use the right word: problem.

A first and obvious concern for the civil servants of the Member States is the accumulation of work that the two Safety Directives involve, not only as regards the drafting of reports, but also vis-à-vis the peer-review conceived as common work in the EU. In the Joint Convention, national reports of considerable extend must be prepared every three years (article 30 of the Joint Convention) and review meetings are celebrated periodically at the IAEA Headquarters to discuss the reports submitted by other Contracting Parties and to seek clarification of them. Additionally, those Member States having nuclear power must meet a similar obligation under the Convention on Nuclear Safety (art. 21). On top of that, the Euratom legal frame seems now:

to duplicate the number of national reports: one report on implementation of the Directive every three years following art. 14.1 Nuclear Waste Directive, which in the case of the 2014 Amendments is “reduced” to two reports between 2014 and 202044;

and to increase significantly the number of peer reviews, every ten years as articles 14.3 of the Nuclear Waste Directive and 8e.1 of the 2014 Amendments show –additionally,

39 See for example page 9 of the Seventh Situation Report (SEC(2011) 1007 final) . See also in the referred ENSREG Guides the Appendix 2 “Reporting of inventories under the Waste Directive” (ENSREG “Final Guidelines for MS Reports to the Waste Directive”, HLG_p(2014-27)_137)40 Commission Recommendation of 15 September 1999 on a classification system for solid radioactivewaste, 1999/669/EC, Euratom41 "Classification of Radioactive Waste", General Safety Guide, IAEA, Vienna 2009.42 The literacy of Article 14.3. states: “Member States shall periodically, and at least every 10 years, arrange for self-assessments of their national framework, competent regulatory authority, national programme and its implementation, and invite international peer review of their national framework, competent regulatory authority and/or national programme, etc.”43 See for example the minutes of the 26th meeting of ENSREG in fine: http://www.ensreg.eu/sites/default/files/HLG_M(2014-26)%20Final%20Minutes%20of%20the%2026th%20ENSREG%20meeting%20.pdf 44 The 2009 Nuclear Safety Directive establishes: Article 9. Reporting. 1. Member States shall submit a report to the Commission on the implementation of this Directive for the first time by 22 July 2014, and every three years thereafter, taking advantage of the review and reporting cycles under the Convention on Nuclear Safety . In 2014 this provision has been replaced by: Member States shall submit a report to the Commission on the implementation of this Directive for the first time by 22 July 2014, and then by 22 July 2020 . Recital 24 of this amendment explains: With a view to simplifying the legislation and reducing the administrative burden, the reporting obligation for the Member States should be made less onerous both as regards the frequency of reporting and the content of the reports…

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the 2014 Amendments introduce the obligation to invite “topical peer reviews” every six years (Article 8e.3).

This is quite a challenge for the civil servant of a Member State having a medium-sized nuclear power programme; and a real problem for non-nuclear small-sized Member States with limited resources devoted to nuclear regulation. The only good news in the Nuclear Waste Directive seems to be that the peer-reviews in this context take place “only” once every ten years (unlike the more frequent peer-reviews in the frame of the Joint Convention). That is to say: whereas the national reports about transposition must be prepared every three years, they do not “provoke” an immediate review meeting (unlike in the Joint Convention). Although no experience has been made to date on the “Euratom peer review meetings”, it is to expect that the documentary material used for their preparation will consist of at least the national reports of compliance with the Directive (and each Member State will have prepared three of them during the ten years interval), plus the national programme enacted by every Member State.

Summarizing, the notification and reporting obligations under the Nuclear Waste Directive can be represented in this –quite discouraging– diagram (the process on the Nuclear Safety Directive must be added where applicable):

Figure 4: The reporting and notification obligations under the Nuclear Waste DirectiveSource: Presentation by the EC, The National Programmes and the obligations of transposition, notification & reporting in the Nuclear Waste Directive; Workshop on the contents and implementation of the National Programmes (25-26 September 2012, Brussels),http://ec.europa.eu/energy/nuclear/forum/risks/doc/waste_disposal/docs/workshop/notification/25.9.,_ubh,_notification_and_reporting_nwd.pdf

The good news for the civil servant seems to end here. If he or she could have expected to use the documentation already prepared in the frame of the Joint Convention (the so called “national reports”) to submit it with minor changes to the European Commission, a quick look into the

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material available will vanish this illusion: the ENSREG Final Guidelines for MS Reports to the Waste Directive warns:

It should be noted that while the Waste Directive and Joint Convention have the same overall objective of the safe management of spent fuel and radioactive waste, they have different addressees and scopes. While the Joint Convention focuses on safety and is more descriptive, the Waste Directive is both safety and policy oriented including policy establishment and implementation through the national programme. As a result, the National Reports to the Joint Convention are more detailed and are prepared for the purpose of the Peer Review Meetings, while those under the Waste Directive are about the implementation of the Directive i.e. to demonstrate to the Council and to the European Parliament the progress made including in the long-term context.A comparison of the Articles of the Waste Directive and those of the Joint Convention (…) demonstrates that while there are some similarities in the obligations under the Waste Directive and Joint Convention, there are also some fundamental differences, etc.

Thus, when Article 14.1 of the Nuclear Waste Directive uses the words “taking advantage of the review and reporting under the Joint Convention”, this expression should not lead to false expectations. The European Commission will not accept recycled national reports (done for the IAEA) for this purpose; as neither will it accept the submission of simple transposition tables instead of the reports45.

What kind of, and how many peer-reviews?

A superficial reading of the Directives on Nuclear Safety and Nuclear Waste suggests that one and the same peer-review process, adequately adapted to the national needs, could be valid to cover the obligations of Articles 14.3 (Waste) and 9.3 (Safety) or 8e (Safety in 2014 Amendments). Again, this assumption becomes less evident after a more careful consideration of the peer-review obligations in both Directives.

The 2009 Nuclear Safety Directive already disregards the concept of a “holistic” peer review: Member States shall at least every 10 years arrange for periodic self-assessments of their national framework and competent regulatory authorities and invite an international peer review of relevant segments of their national framework and/or authorities with the aim of continuously improving nuclear safety. Outcomes of any peer review shall be reported to the Member States and the Commission, when available. As will be explained in the following paragraphs, this statement is amended in 2014.

The Recital 21 of the 2009 Nuclear Safety Directive contains interesting reflections about the nature of the peer-reviews and merits to be quoted here:

In the past, self-assessments have been carried out in Member States in close connection with international peer reviews under the auspices of the IAEA as International Regulatory Review Team or Integrated Regulatory Review Service missions. These self-assessments were carried out and these missions were invited by Member States on a voluntary basis in the spirit of openness and transparency. Self-

45 Article 15.3 of the Nuclear Waste Directive: “Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive and of any subsequent amendments to those provisions”.

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assessments and accompanying peer reviews of the legislative, regulatory and organisational infrastructure should be aimed at strengthening and enhancing the national framework of Member States, whilst recognising their competencies in ensuring nuclear safety of nuclear installations on their territory. The self-assessments followed by international peer reviews are neither an inspection nor an audit, but a mutual learning mechanism that accepts different approaches to the organisation and practices of a competent regulatory authority, while considering regulatory, technical and policy issues of a Member State that contribute to ensuring a strong nuclear safety regime. The international peer reviews should be regarded as an opportunity to exchange professional experience and to share lessons learned and good practices in an open and cooperative spirit through advice by peers rather than control or judgement. Recognising a need for flexibility and appropriateness in regard to different existing systems in Member States, a Member State should be free to determine the segments of its system being subject to the specific peer review invited, with the aim of continuously improving nuclear safety.

Some conclusions can be extracted from this recital: The Institutions of the EU are aware that the peer-reviews exceed the capabilities of the

EC to lead their organization; therefore, the peer-reviews are conceived more as an international rather than a purely European instrument.

The character of the peer-review as a “learning mechanism rather than inspection or audit” is highlighted. The recommendations made to a Member State after concluding a peer-review, according to this, should be regarded as “incentive” proposals.

Reference is made to IRRT or IRRS suggesting that this kind of missions (or of a similar type) could be invited here.

The 2014 Amendments strengthen the provisions on peer reviews. The provision to invite peer-reviews as described in the 2009 Nuclear Safety Directive is deleted and instead a new Article (8e) is introduced. This new Article makes reference to peer-reviews at least of three types:

Paragraph 1 refers to “international peer review of relevant segments of their national framework and competent regulatory authorities” at least every ten years (This is presumably the same type of peer-reviews that existed in the 2009 Nuclear Safety Directive).

Paragraph 3 introduces the concept of “topical peer reviews”, this time every six years. The first topical peer review must start in 2017, and subsequent topical peer reviews must take place at least every 6 years thereafter (This seems to be a new type of peer-review and it is explained in recital 23 of the 2014 Amendments).

According to paragraph 4, Member States will also have to organise an international peer review of the installation, in case of an accident and major safety problems.

The author of this study must now confess certain astonishment in view of this proliferation of peer-reviews. The press-note of the EC accompanying the publication of the 2014 Amendments focuses on the topical peer-reviews of the third paragraph being organized every six years and does not refer at all to the peer-reviews of the first type46. However, as far as paragraph 1 is not repealed, my understanding of the new article 8e is that the peer-reviews of paragraph 1 and 3 coexist.

46 http://europa.eu/rapid/press-release_MEMO-14-464_en.htm

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Again, the recitals at the 2014 Amendment help in the clarification of this new concept of “topical peer review” (recital 23):

Member States, through their competent regulatory authorities making relevant use of ENSREG, and building on the expertise of the WENRA, should every six years define a methodology, Terms of Reference and a time frame for Peer Reviews on a common specific technical topic related to the nuclear safety of their nuclear installations. The common specific technical topic to be considered should be identified among the WENRA safety reference levels or on the basis of operating experience feed-back, incidents and accidents and technological and scientific developments. Member States should perform a national self-assessment and make arrangements for common peer reviews by other Member States' competent regulatory authorities of their national self-assessment.

Now direct reference is made as regards the role of WENRA as the source of safety reference levels for the peer-reviews.

Let’s now come to the Nuclear Waste Directive. The recitals of this Directive (in particular recital 40) do not reflect that implication, neither of IAEA through IRRS missions on the regulatory side, nor to the use of WENRA reference levels. However, the recourse to IAEA and/or other international providers of peer-review services seems clear, in particular since Euratom and IAEA sign a Memorandum of Understanding on 17 th September 201347. The cooperation among the EC and the IAEA is of course not new, and this Memorandum of Understanding has its roots in instruments such as the Cooperation Agreement of 1976 and the Joint Statement of 2008. The areas of cooperation are defined in its Article II (safety standards, regulatory framework, installation safety, radiation protection, spent fuel and radioactive waste, etc.). This includes the provision of IAEA peer-reviews for both Directives for those Member States that so request.

In a parallel way, ENSREG and the IAEA have also signed a Memorandum of Understanding for International Peer Review Missions in EU Member States in June 201148. This MoU concerns IRRS missions – up to now only for the Safety Directive- where IAEA commits itself “to establish, manage and implement the European IRRS programme, as part of the global IRRS programme, taking into account ENSREG’s policies”.

From what has been said, it seems clear that the IRRS missions (or an adaptation of them) will be offered to fulfil the peer-reviews obligations in both Directives. The MoU between ENSREG and the IAEA concerns in principle only the Nuclear Safety Directive, but it could be widened to cover also the Nuclear Waste Directive49. There is, however, a small inconvenient in the direct recourse to IRRS missions in the case of the Nuclear Waste Directive. As has been explained, the Nuclear Waste Directive concerns the “infrastructure” on radioactive waste management given in a Member State; this corresponds with the concept of “National Framework” of Article 5 and, if the reader remembers the pyramid represented in Figure 1 of this study, the second layer of it. This “layer” can be subject to IRRS or other types of peer-reviews focused on safety (in this case, on the safety of radioactive waste management). 47 A Commission Decision of 5th September 2013 [C(2013) 5641 final] authorizes the conclusion of this Memorandum. The details and text are available in http://ec.europa.eu/energy/nuclear/safety/safety_en.htm 48 http://www.ensreg.eu/node/293 49 See the Minutes of the 26th ENSREG meeting on 16 January 2014 published in internet: http://www.ensreg.eu/documents?view_filter_1=18

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However, the Nuclear Waste Directive has another dimension: the political one, which is reflected in the national programmes. That would be, referring again to Figure 1, the basis of the pyramid. The policies on radioactive waste management as reflected in the national programme are not susceptible to be examined with the same tools than the “pure” safety aspects. In the context of ENSREG and the IAEA, this fact has been acknowledged and it has been suggested that a new kind of missions could be needed. The possibility of simply expanding the scope of IRRS missions is regarded with skepticism and the IAEA is contemplating the possibility of creating a new kind of missions to cover those policy aspects50.

A number of questions on the nature and references used for such peer-reviews on the national programmes arise then. In the same way as IAEA has produced a solid corpus of safety standards, not many texts concern the subject of policies in radioactive waste management. An IAEA Guide on policies and strategies has been mentioned in this study51; but this does not stand the fact that such Guide is only one instrument, not integrated in the corpus of IAEA Safety Standards and having recommendatory nature. Apart from it, there are few legal sources or standards that the IAEA could use as a basis for evaluation of the European policies. No need to say that concerns might arise in some Member States if an international organization outside the EU would send international experts (in principle, not necessarily European) to evaluate European policies.

Final considerations

All these questions may raise a certain anxiety in the reader who, in principle, would have expected that the major aspects concerning the transposition of the Nuclear Waste Directive were in a reasonable stage of “maturity”. Important aspects in the organization of the peer-reviews in both Directives are still pending definition and nuclear lawyers are not always aware of them. During the next few years, we will assist to the major definition, and finally the celebration of the “Euratom peer-reviews” in the frame of both the Nuclear Waste and the Safety Directives, in the hope for them to become a real instrument for enhancement of nuclear safety and –in the case of the peer-reviews of the national programmes- a more efficient policy- making towards solutions that really take the needs of future generations into account. In principle, the idea of combining the IAEA expertise in the organization of peer-reviews with the robust Euratom legal framework can lead to very positive results. However, the cooperation of both organizations must be done in the willingness of optimizing work and serving to a common purpose. Whether the peer-reviews become such a positive instrument, or on the contrary they turn out to be a bureaucratic orchestration of presentations and paperwork, will depend on the common sense and the real wish to cooperate of all the parties involved.

50 See the Minutes of the 26th ENSREG meeting on 16 January 2014 published in internet: http://www.ensreg.eu/documents?view_filter_1=18 51 No. NW-G-1.1, IAEA 2009