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Netherlands: Court case on closure date Borssele NPP

Nuclear Monitor Issue: 

(June 29, 2001) On 22 June, a court case took place concerning the closure date of the Borssele NPP. In 1994, the government decided that the reactor had to be closed as of 31 December 2003. But the government decision was annulled by the Council of State in 2000, which opened the way for a later closure date. The government is now seeking to re-establish the closure date of 2003 through a decision by the Court of Administrative Law.

(551.5290) WISE Amsterdam - On the day of the court case, WISE together with Greenpeace, Friends of the Earth Netherlands and Stop Borssele! organized a demonstration in the center of 's-Hertogenbosch. Around 200 people attended the demonstration. As well as Dutch activists, there were people from France, where Borssele's spent fuel is reprocessed, and from Germany and the UK.

Frieda Kas from Stop Borssele! pleaded for a rapid closure of the NPP, sooner rather than later. Dutch MP Marijke Vos from the Green Left party was the initiator of the motion adopted in Parliament in 1994 to close Borssele at the end of 2003 and urged Borssele NPP to accept this democratic decision. She promised to use all parliamentary means to hold it to the 1994 decision.

After the demonstration the people walked in a colorful procession to the court, where some 40 workers from the NPP had organized a picket-line. They claimed that Borssele stands for "energy and clean air" without CO2 emissions, without mentioning the fact the NPP's owner EPZ (Electricity Producers South-Netherlands) also operates a number of big coal-fired electricity plants.

A 50-meter-long banner used in the anti-nuclear demonstration was compiled of several small banners from all over the world saying that Borssele should close immediately. WISE received banners from groups in France, Finland, Czech Republic, Nepal, Australia and some other countries.

History of the 1994 decision
After the 1986 Chernobyl disaster, the Borssele NPP was visited by a mission of the IAEA to study the safety of the reactor. In their 1987 report a number of shortcomings in safety were observed. Borssele NPP owner EPZ got permission in 1991 from the SEP (Dutch Association of Electricity Producers, the highest electricity board) to start a safety upgrade program, which was projected to cost NLG 467 million (US$310 million at the 1994 rate). In order to recover the costs of the modification, the EPZ wanted to operate Borssele at least until 2007.

In 1993, the Dutch parliament approved the Electricity Plan 1995-2004 but wanted a separate decision on the closure date of Borssele. After two sessions of voting, the motion initiated by Marijke Vos was adopted on 23 November 1994 with 77 MPs in favour and 73 against. This meant that Borssele had to close at 31 December 2003 but also had the effect that the safety upgrade investment would be uneconomical. There was a slight hope that because of this the modification program would be cancelled and therefore the reactor would close sooner. Unfortunately, the minister of Economic Affairs Hans Wijers decided a few weeks later to compensate EPZ for the earlier closure date with NLG 70 million (US$46 million at the 1994 rate) to be paid at the time the reactor closes. This was agreed after negotiations with the SEP in December 1994.

Procedures for a new Nuclear Energy Law license were started to fix the closure date of 31 December 2003. The new license with this closure date was issued in 1997 but Borssele workers and EPZ took legal action to stop the license coming into effect. In February 2000, the Council of State (the highest Dutch court) cancelled the license stipulating closure as of end 2003 on procedural grounds. The Council of State said that EPZ and the workers had not been given a fair possibility for participation in the procedure (see WISE News Communique 525: "In Brief"). So the old license with no definite closure date came back into effect. This meant that Borssele could stay open until 2007 or even 2013, since these dates were mentioned in the past based on a planned lifetime of up to 40 years.

Court case 22 June
In order to close Borssele at the end of 2003, the government started a case at the Court of Administrative Law in 's-Hertogenbosch where EPZ has its registered address. In contacts with EPZ it had become clear during the last year that EPZ no longer wanted to close Borssele in 2003, regardless of what Wijers had agreed in December 1994 with the SEP including the NLG 70 million compensation money.

EPZ considered the December 1994 agreement to be irrelevant. EPZ's lawyer said that the agreement was signed with the SEP and thus was not binding for EPZ, added to the fact that the electricity market had since been deregulated and SEP no longer even exists. The government's lawyer however stated that SEP had at that time represented EPZ in the negotiations as the country's highest electricity authority and thus that EPZ had accepted the agreement on closure. Besides, EPZ had accepted the fact that they would receive the compensation sum if Borssele would close.

When the judge asked whether any minutes had been taken during the negotiations in 1994, the lawyer of the government said he was not aware of any minutes apart from the agreement paper itself. Which of course is a bit strange for negotiations on the closure of a nuclear power plant including millions of guilders in compensation.

Quite unclear was the situation of the NLG 70 million compensation. The money was allocated out of a special SEP fund for unforeseen fluctuations in electricity production costs. EPZ has not received the money yet (it would get it only after the actual closure), but it seems that EPZ has already experienced certain financial benefits from the allocation. This is because the compensation was allocated as an interest-free loan, whereas interest must be added to the special SEP fund each year. The compensation arrangement has therefore reduced the amount of money EPZ must put aside as interest on the special SEP fund.

Finally, the government's lawyer asked the judge to take a rapid decision. According to European laws, the closure of an installation like a nuclear reactor requires an environmental impact assessment, which takes time to be carried out. If the judge decides that Borssele has to close as of 31 December 2003 there is little time left to make such an assessment, including all the procedural requirements and possibilities for public participation.

If, on the other hand, the judge decides that Borssele can stay open, there is the problem of what to do with the spent fuel. Renewal of the reprocessing contract with La Hague could cause problems since the coalition agreement between the French Green and Socialist Parties stipulated that no new reprocessing contracts would be signed. Storing the spent fuel without reprocessing would also cause problems since the existing storage space at the Central Organization for Radioactive Waste (COVRA) store is not suitable, and new storage space would need to be built.

The court will give its verdict on 21 September.

Thanks for all groups who send us banners for the demonstration!

Source and contact: WISE Amsterdam