(November 14, 2003) The enlargement of the European Union will lead to a twenty seven country Union, with a population of around half a billion citizens. This highly complex process will impact upon all sectors of the aspiring countries' and current Member States societies. An area that will need to be addressed and one that has been identified as a priority is that of nuclear safety. In July 1997 the European Commission published Agenda 2000, which laid out the European Commission's proposal for the enlargement of the European Union. This document made clear both the importance that the Commission placed upon nuclear safety and the timetable in which action should be taken.
"The problem of nuclear safety in some candidate countries causes serious concerns to the EU, even independently of enlargement, and should be urgently and effectively addressed. It is imperative that solutions, including closure where required, be found to these issues in accordance with the Community nuclear acquis and a "nuclear safety culture" as established in the western world as soon as possible and even before accession. Public opinion is likely to be increasingly sensitive to nuclear safety as a consequence of some nuclear power plant problems in acceding countries, and this could affect major community policy developments in this field".
However, unlike other areas nuclear safety does not currently fall under the Community Acquis, as nuclear safety standards are the competence of the national government and their appropriate authorities although the European Commission put forward draft proposals in November 2002 to introduce nuclear safety principals, initially proposed as a first step to introducing EU nuclear safety standards. This was seen as a necessary step to ensure high nuclear safety standards following enlargement. Consequently, the Enlargement process has impacted not only on nuclear operation in Accession countries but also those current Member States.
1.1 Impact in accession countries.
Agenda 2000 called for an increase in nuclear safety to a standard dependent on the original reactor design. These reactor categories are:
The first generation of reactors: the VVER 440-230 and RBMK designs.
Agenda 2000 stated that these cannot be economically upgraded to an acceptable safety standard and thus need to be closed. The reactors in question were already the subject of agreements that laid out closure dates and conditions. Agenda 2000 called for these agreements to be abided by. The reactors in question are: Bohunice V-1 in Slovakia; Ignalina 1 and 2 in Lithuania; and Kozloduy 1-4 in Bulgaria.
The second generation of reactors: the VVER 440-213 and VVER 1000 designs.
Agenda 2000 stated that the reactors of these design that are in operation or under construction could be economically upgraded to meet international safety standards. The Commission stated that an upgrading program should be fully implemented over the next ten years. This applies to Dukovany and Temelin in the Czech Republic; Bohunice V-2 and Mochovce in Slovakia; Paks in Hungary; and Kozloduy 5 and 6 in Bulgaria.
Western design reactors in operation and under-construction in accession countries.
Krsko in Slovenia and Cernavoda in Romania. In these cases monitoring and assessments need to be undertaken to ensure that the operation and construction was in line with the appropriate safety standards.
1.1.1 Closure of reactors; initial agreements:
For each reactor agreements already exist that should see the reactors closed by or close to the millennium. However, despite continual international assertions that these reactors should be closed, current agreements have or are being ignored. The existing agreements are:
Kozloduy: In June 1993, the first Nuclear Safety Account agreement was signed, which granted 24 MECU(at that time $28 million) to the Units 1-4 of NPP Kozloduy. The agreement called for the closure of Units 1-2 by the spring of 1997, when upgrading of Kozloduy 5 or 6 and the construction of the Chaira pumped storage hydroplant would be complete. Units 3 and 4 were scheduled for closure at the end of 1998, by which time both Kozloduy 5 and 6 as well as three district heating co-generation units would have been upgraded.
Ignalina: A concrete date has never been set for the closure of Ignalina, despite the awarding of an ECU 35 million NSA grant in February 1994. The NSA agreement states that the reactors may not be re-channelled, which involves the replacing of the fuel channels and the re-aligning of the graphite moderator. This has shown to be necessary after about 10-20 years operation (depending of the power output of the reactors) and is due to neutrons distor-ting the fuel channel and graphite blocks. This is an expensive ($100 million/reactor), lengthy (18 months) and dirty (high workers doses) process, but it significantly increases the life of the reactor - by 10-20 years. In addition the NSA agreement requires that the licensing authorities, taking into account a detailed international safety assessment report, are required to re-assess the safety of Ignalina 1. Analysis of unit 1 undertaken by Scientech (US) and AEA (UK) and published by Lithuanian Energy Agency, suggested that regulatory action (i.e. closure of unit 1, due to the closure of the fuel channels) should occur in two to three years, dating from the summer of 1998.
Bohunice: On 14th May 1994, the Slovak Prime Minister signed a resolution which committed Slovakia to closing Bohunice as soon as Mochovce enters commercial operation, or by the year 2000 at the latest.
1.1.2 Closure of reactors; Helsinki agreements:
At the EU summit in Helsinki in December 1999 the previous commitment to two entry waves into the EU was formerly abandoned. Consequently, Bulgaria, Lithuania and Slovakia were formerly invited to begin negotiating entry into the EU. The closure of the high-risk reactors was therefore an issue that needed to be resolved in the months leading up to the summit. Bi-lateral negotiations took place between the Commission and the countries concerned. As a result of these negotiations the following dates were agreed to:
Bulgaria: Closure of Units 1 and 2 in 2003. Closure of Units 3 and 4 in 2006
Lithuania: Closure of Unit 1 by 2005. Closure of Unit 2 by 2009.
- Slovakia: Closure of Bohunice V-1 between 2006-8.
|Nuclear Power Plant
|Earliest agreed closure
Unit 1 and 2
Unit 3 and 4
|Unit 1 and 2
The renegotiated timetables will now allow the operation of both RBMKs and VVER 440-230s in Member States of the EU for the first time. Furthermore, assuming that the closure plans are adhered too, it will see the EU also for the first time requiring the closure of reactors on safety grounds.
1.2 Euratom reform
The EURATOM Treaty was signed in 1957 and is one of the founding Treaties of the current European Union. It requires the European community to create the 'conditions necessary for the speedy establishment and growth of nuclear industries'. However, it has not been subject to changes in the same way that the other Treaties have. As part of the enlargement process the EU has stated that it was necessary to streamline the EU institutions to enable an EU 27 to function. Such a process must include a review of the Euratom Treaty.
The Treaty was signed in 1957 at a period of unquestioning optimism as to the role that nuclear power would or could play in the future development of the world. This was the era when Admiral Lewis L. Strauss, then Chairman of the U.S. Atomic Energy Commission, made his famous speech in which he said that it could be imagined that as a result of nuclear power electricity would be 'too cheap to meter'. In many ways the EURATOM Treaty reflects this view as its preamble states that 'Recognising nuclear energy represents an essential resource for the development and invigoration of industry'. As a consequence the Treaty sets about to 'create the conditions necessary for the development of a powerful nuclear industry'.
It is absurd that as the EU has mandated the Convention and then the Inter Governmental Conference, which began in October 2003, to streamline the Treaties of the EU that it should not look at the Euratom Treaty. The need to at the very least review the functioning of the Euratom Treaty is further highlighted by the fact that:
In July 2002, the European Coal and Steel Community - one of the other founding Treaties of the EU and the only other established to support specific technologies - expired.
The Lisbon Summit in 2000 called for increased liberalisation of key sector such as energy. A consumer-environmental friendly liberalisation of the electricity industry requires increased transparency, fair access to grids, rights for consumers and a level playing field between generators. The Euratom Treaty, with its requirement for the community to create the 'conditions necessary for the speedy establishment and grown of nuclear industries' contradicts the requirement for equal treatment of electricity generators.
The Euratom Treaty is largely shielded from the scrutiny of the European Parliament, as there is no co-decision for its operational functions.
- Furthermore, the Treaty creates advantages for the nuclear industry such as Euratom Loans and a specific nuclear R&D program and has been used by the European Commission to justify their lack of action to tackle the questions of market distortion created by state aids to the nuclear industry.
1.2.1 The Convention and the review of the Euratom treaty
There were a number of submissions to the Convention that call for changes in the Euratom Treaty, made by the European Commission, Members of the Convention and the Praesidium. Despite the apparent desire to address the Euratom Treaty the draft Constitution instead called for the Euratom Treaty to remain intact as a Protocol, but with the Euratom Treaty remaining as a separate legal entity.
If this does not change:
No changes are made to the powers of the Euratom Treaty. As a consequence the lack of democratic controls within the Treaty will remain, with no effective co-decision with the European Parliament.
The Treaty is included within the EU Constitution and thus given increased status and potentially protection. It should be noted that Chapter IV Article 5 of the draft constitution states 'The protocols annexed to this Treaty shall form an integral part thereof'
- The Treaty remains as an independent treaty.
Prior to the launch of the Inter Governmental Conference, on October 4, both the European Parliament and the Commission make known their positions on the Constitution and the Euratom Treaty.
The Commission stated that the proposed changes for the Euratom Treaty to retain its own legal personality are incomplete and further adjustments to the Constitution will be necessary. Furthermore, the draft text raises questions about the relationship between the Euratom Treaty and the Union.
- The Parliament was more critical and called for a special Euratom Treaty revision conference to repeal the obsolete and outdated Treaty.
Within the IGC a number of Member States are expected to raise the need for the reform of the Euratom Treaty to be included in a list of topics for discussion.
1.2.2 Promotional functions of the Euratom treaty
Since 1977 around € 3.2 billion worth of financial support for nuclear power has been awarded by the Euratom's nuclear loan facility. Their values are shown in the graph below.
What this shows is that the use of the loan facility has decreased significantly over the last decade or so. The only loan to have been signed in the 1990s was for work at the Kozloduy nuclear power plant in Bulgaria. Consequently, it is now more than fifteen years since a Member State has even applied for an Euratom loan.
Source: European Commission, 2003
Furthermore, it is interesting to look at the country breakdown of who receives Euratom loans. The graph below shows that France has received far more loans than any other country. In total France has received 39 separate Euratom loans totalling over € 1 billion. These have been largely used for the expansion of the French nuclear power sector, including the construction of fuel cycle facilities and even to fund reprocessing of nuclear fuel. The country recipients of these loans are shown in the next graph.
Source: European Commission, 2003
The EU Ministers of Finance are currently reviewing a proposal of the European Commission to extend the Loan ceiling by a further € 2 billion. Simultaneously they are also proposing to change the scope for the type of projects that Euratom Loans can be used for, specifically relating to the enlargement of the EU. The Council's Finance working group is currently reviewing these proposals, but no date has been set when they will be presented to the ECOFIN - the EU Financial Affairs Council delegated with the decision - for final decision.
In 1994 the loan facility was extended to non-member States in CEE and CIS, however, the type of projects and the percentage of a particular project that Euratom could fund differed from that for Member States. Consequently, the change in scope is purely relating to the harmonisation of criteria for new entrance into the EU.
However, the Commission also claim that the scope changes will allow to 'prioritising' projects that increase the safety of reactors and funding for the use for decommissioning of nuclear facilities or for research reactors. Such claims are more to do with public relations than substance as Euratom loans can already in theory be used for decommissioning facilities or research reactors, as they can be used for 'the purpose of financing investment projects relating to the industrial production of electricity in nuclear power stations and to industrial fuel cycle installations'. Attempts within the Commission to restrict lending to nuclear safety upgrading projects failed as it is said that it is not possible to exclude any projects that are supported by the Treaty in general.
This lack of restriction, coupled with project approval for loan resting solely with the European Commission, mean that Member States and the Parliament have absolutely no control on what projects will be funded if the ceiling is increased.
In addition the Euratom Treaty oversees the operation of research and development. Consequently, the EU has two framework programs, one for nuclear research and development and one for all other aspects (Food, Transport etc). The latter EU Framework program is subject to co-decision by the European Parliament. However, for the Euratom Framework Programme no such oversight exists. As can be seen in the graph below nuclear, fission and fusion, research has remained relatively constant in recent programs, while conventional energy has seen a decline of 20%. What this graph clearly shows is that nuclear technology receives more than 50% of all energy R and D budgets.
Furthermore, the levels of funding for nuclear fusion may well increase in the 7th Framework (2006 - 2010) program. In May 2003, the Commission published a Communication on Nuclear Fusion to co-ordinate with decisions on the location and schedule for the construction of the International Thermonuclear Experimental Reactor (ITER) - the next generation of fusion reactors.
1.3 Commission proposals in the nuclear package
At the end of April 2002 the EU's Vice-President Loyola de Palacio announced in the European Parliament that the time had come for ‘common [nuclear] standards and control mechanisms which will guarantee the application of the same criteria and methods in the whole of enlarged Europe’.
On November 6, 2002, the Commission's college finally discussed and adopted what became known as the 'nuclear package' which encompassed legislation on safety standards and radioactive waste management strategies. At the time of the publication the Commission stated that 'to avoid any difference of treatment between the current Member States and the new Member States, the legal regime will need to be operational on the date of the enlargement of the Union, i.e. 1st January 2004'.
In January 2003 the Commission published revised versions of the draft directives, following consultation with the Article 31 expert group. The revision of the Directives was necessary as the Commission proposed the new legislation under Article 31 of the Euratom Treaty. This article relates to health and environmental protection and required the consultation with a group of experts. The January 2003 draft makes some significant changes in the draft legislation and weakens the proposed legislation, in particular on the safety Directive, to such an extent that it will have little or no impact on the safety of nuclear facilities in the EU.
The European Commission is proposing to significantly increase the powers of the EU to regulate nuclear facilities. While everyone would like to see measures introduced that would lead to a significant increase in safety standards across the EU, it is important to assess what changes the proposals will actually require and what impact they will have.
The enlargement of the EU highlighted the fact that there is no specific legislation in the EU to ensure nuclear safety standards. The Commission's logic is that once accession countries have joined the EU there is no mechanism to ensure that new Members, or in fact existing Members, operate their facilities at an acceptable safety standard. This is why it was initially proposed that the legislation be enforced in Member States by the time accession countries join the Union.
The November 2002 draft clearly stated that the directive on nuclear safety principals would be a framework directive and therefore that further, presumably more far reaching, daughter directives would be introduced that would lead to the original intention of Ms. de Palacio, namely EU wide nuclear safety standards. However, the January 2003 draft removed this suggestion and the Commission have categorically stated that this is not a framework Directive. The exact changes are shown in the text box below.
|November 2002 Draft Submitted to Article 31 Expert Group
|Final Proposal Adopted by Commission January 2003
Recital 10: In order to attain the Community objectives regarding radioprotection mentioned above, it is essential as a first stage to define the basic obligations and general principles on the safety of nuclear installations in this framework Directive. The establishment of common standards and control mechanisms will at a later stage complement this in order to guarantee a high level of safety that takes account of technological changes.
|Recital 10: In order to attain the Community objectives regarding radioprotection mentioned above, it is essential as a first stage to define the basic obligations and gene-ral principles on the safety of nuclear installations.
It is therefore clear that the directive will not require the setting of even basic EU nuclear safety standards, but rather 'setting out basic obligations and general principals guaranteeing a high level of safety of nuclear installations on the basis of which common safety standards will be adopted in due course'. The draft directive then states that 'Each Member State shall take appropriate steps to ensure that in the course of all practises directly related to nuclear installations due priority is given to nuclear safety'. The main mechanisms that the Commission proposes to guarantee a high level of safety are:
Each Member State must ensure it has a safety authority which is independent from bodies that promote or utilise nuclear energy,
The safety authority shall regulate and supervise safety of nuclear installations,
Each Member State shall require the operator to run the facility in accordance with 'common safety standards',
- Each Member State shall take the appropriate steps to ensure adequate financial resources are available to support the safety of facilities.
One of the key issues for the directive is how it will be verified. Article 14 clarifies this issue. It states that Member States shall submit to the Commission lists of experts who may then be called upon to inspect only the activities of the nuclear regulator. However, even these experts must have prior approval from the safety authority in the Member State in which the inspection is taking place. Furthermore, the Commission shall inform the Member State concerned prior to the inspection, 'the subject matter, the purpose of the inspection and the date on which it is to begin and the names of the authorised persons' - so no surprise visits. Finally, it is unclear if the inspection reports will be made public - early drafts of the draft directive said they would remain confidential, but this was deleted in the final version and it doesn't state if they will be made public or not. The formal reporting to the Parliament and Council is restricted to a report every two years on the application of the directive.
It can be concluded that the draft directive does not offer any significant demands on Member States. Furthermore, all Member States and Accession countries, who have operating nuclear power facilities are already Members of the International Atomic Energy Agency's Convention on Nuclear Safety, which makes the same requirements as that of the proposed directive, namely:
There should be sufficient separation between the regulator and any other body or organisation that promotes or operates nuclear power plants,
The regulator framework shall establish applicable national safety requirements and regulations,
Each contracting party shall ensure that all organisations relating to nuclear installations shall give priority to nuclear safety,
- Each contracting party shall ensure that there are adequate financial resources to support the safe operation of nuclear installations.
It is therefore clear that the draft Directive makes few significant additional requirements on Member States or accession countries than that of the Convention on Nuclear Safety. The main difference being that the Safety Convention applies only to nuclear power plants, while the Commission's draft directive applies to all civilian nuclear facilities. Despite this, the directive is likely to receive little support from those Member States that operate nuclear power plants as they may well see the directive as only repeating the demands of the Safety Convention. "Non-nuclear" Member States are unlikely to support the proposal as it fails to introduce binding standards for nuclear power plants as they had hoped.
In an annex of the draft Directive on nuclear safety the Commission have included a proposal to take action on the issue of radioactive waste and decommissioning funds. For a number of years the Commission has been considering legislation to regulate the use of decommissioning funds. In a 1998 Commission publication it was stated:
‘Different situations exist among the Member States for the financing of decommissioning, e.g. simple provision in the accounts allowing reinvestment of the collected funds for other than decommissioning purposes, segregation of collected funds outside the sphere of the company, or a complete State organization and management of decommissioning by separate specialized, mostly publicly owned companies. Moreover, the amount of yearly funding required, the requirements as to when and how decommissioning has to be accomplished, and the applied calculation methods and discount rates differ substantially between Member States. This situation could lead to distortion and discrimination between now competing nuclear electricity producers from different Member States. Decommissioning costs are clearly seen as part of the electricity production costs.’
The key issue is accessibility to these funds. In some Member States such as France and Germany, the nuclear operators retain control of the funds they must set aside for decommissioning and waste management. While in others, such as Spain, Finland and Sweden, the funds are managed by a separate legal entity. Therefore in some countries decommissioning funds may be used by the utility for investments, either in their existing facilities or for market acquisitions. It is already clear that the same companies which could have access to their decommissioning funds are also those that are most active in purchasing other electricity or energy companies. The graph below highlights the extent to which utilities who do not have separate - or segregated funds - accounts for decommissioning and waste management activities have been active in the purchase of other European utilities.
Source for acquisitions, EdF Annual Report 2002
Therefore the European Parliament, in its first reading of the Electricity Market Directive in March 2002, proposed an amendment that sought to address the market distortion
The Commission rejected the Parliament's amendment claiming that they agreed on the importance of the issue, but rejected the intention of inclusion of this issue within the electricity market directive. Rather they stated that a directive specifically addressing this issue would be prepared.
Instead of this, the issue has finally been addressed in an annex of the directive on nuclear safety guidelines. In this it states:
‘The assets of the funds are to be used only to cover the costs set out in paragraph 2 [decommissioning and spent fuel management costs] above in line with the decommissioning strategy and may not be used for other purposes. To this end the decommissioning funds shall be duly established with their own legal personality, separate from the operator of the installation. If exceptional and duly justified reasons make such legal separation impossible, the fund could continue to be managed by the operator’.
While the first part of the paragraph goes some way to meet the requirements of the Parliament's amendment, the second sentence completely undermines the whole intent. There is no definition of what 'exceptional' circum-stances are and no indication who shall judge the justification for the exception. Such a loophole totally undermines the whole purpose of restriction on the use of decommissioning funds.
The draft directive on the management of spent nuclear fuel and radioactive waste is clearly the most demanding of the two proposed pieces of legislation. There are three main areas that are addressed.
Firstly, the proposed legislation insists that the only option for the disposal of high level radioactive waste (HLW) is deep geological. This is against the current policy of a number of Member States who either wish to explore other options or have already decided that retrievable (above- or underground) storage is their preferred option. Furthermore, the Directive makes no mention of the need for waste to be monitored and retrieved if necessary, which is an essential part of ensuring that the environmental and human health is protected in the long term. Without such mechanisms there is a danger that radioactive waste will leak into the environment with little or no chance or rectifying the situation.
Secondly, the Directive proposes clear timetables for the disposal of radioactive waste, namely:
Authorisation for the development of appropriate disposal sites should be granted no later than 2008,
Authorisation for the operation of sites to dispose of low level radioactive waste should be completed by 2013,
- Authorisation for the operation of sites to dispose of high level radioactive waste should be completed by 2018.
However, it should be noted 'the council may decide, on a proposal from the Commission, to modify these dates in the interest of enhanced nuclear safety within the European Union'.
The timetables that are proposed are totally unrealistic, especially for the operation of a disposal facility for HLW. Even Finland, which is said to the most advance programme for the disposal of HLW, will not have an operational facility before 2020. Furthermore, the setting of any fixed timetable for waste disposal undermines the processes for site selection, public consultation and scientific analysis. Therefore, it is inappropriate to establish any binding timetables for the operation of radioactive waste facilities.
Finally, on nuclear waste export the draft directive states 'the [waste management] programme may include the exports of radioactive material of spent fuel to another Member State or third country, if such exports are fully in compliance with existing EU legislation'. Many fear that this will result in the construction of regional radioactive waste dumps in the EU or the export of waste to Russia or Kazakhstan. In this country the Parliament is proposing to approve changes in the law to allow the importation of nuclear waste, similar to the changes in the Russia law in 2001. The Kazakh authorities hope that the importation of waste will earn around € 30 billion.
As currently drafted the two Directives will not have the desired effect to reduce the risk of environmental contamination by radionuclides. The safety principals Directive will only add to the reporting requirements of nuclear regulators, rather than require new standards of operation or design. If the EU wishes to introduce legislation to reduce the risk of a nuclear accident then it must require binding nuclear safety standards which are higher than that current deployed in Member States. Therefore, the minimum that should be introduced is a requirement for all nuclear facilities to reach a 'state of the art' standard as adopted by the European Council in 1998, which would require an increase in safety standards in most nuclear facilities in the EU. Such a proposal would almost certainly result in an increase in nuclear safety through an enlarged EU.
The legislation on decommission funds will not result in any changes in current practice. The loop-hole within the legislation will allow those utilities that wish to retain control of their decommission funds continuing to do so and thus continue this market distortion and risk the availability of funds when needed.
The waste management Directive is proposing the wrong approach to dealing with the disposal of radioactive waste. The Commission has identified lack of political will as opposed to technical and safety issues, as the reason why there has been little progress on the disposal of radioactive waste. However, the real issue is public confidence. The communities most potentially affected by the disposal of radioactive waste must be given the correct information and time to draw their own conclusions about disposal in their neighbourhood. Instead of embracing this situation and assisting to address it the Commission's proposal do the opposite and try to reduce the review of technical options and curtail debate. This will have the opposite effect that the Commission want and if adopted will lead to more delays in the final operation of disposal facilities.
1.5 Current debate
Since January 2003 discussions on the package have taken place within the Atomic Questions Working Group (AQWG), a committee of the European Council. This group consists of nuclear experts from Member States. Within this group there is considerable opposition to the proposed Directives. As a result of discussions two approaches have emerged on how to proceed with the legislation.
Non-Binding Legislation: In September a proposal was circulated from the Finish, Swedish and UK Governments to replace the draft Directives with non-binding legislation, such as a Council recommendation. This would require only consultation between Member States and the Commission with no legally binding actions. The Belgium and German Governments have subsequently supported the proposal. As the legal justification for the Directives is Article 31 of the Euratom Treaty, it requires adoption by qualified majority voting. If these five countries remain in opposition to the Directives they can block their introduction.
Revised Directives: In response to opposition to the current drafts from a majority of Member States a revision of the text has occurred. The latest versions, of October 14th, significantly reduce the requirements of the Directives. Some of the changes include:
Safety Principles: The proposals for verification of the functioning of the national safety agency have been downgraded to a review process. Furthermore, there remains no inclusion of sanctions or other measures for non-compliance.
Decommissioning Funds: The annex on decommissioning and radioactive waste management has been removed and inserted into the text of the Directive. Accompanying these changes is the removal of even the limited requirement for segregated funds. Thus enabling the status quo to continue.
- Waste Management: The most controversial timetable for the establishment of high level repositories has been removed. However, the priority for deep geological disposal remains.
The European Parliament is scheduled to debate the draft Directives - the January 2003 versions - in November and December 2003. Draft Committee reports suggests that the Parliament will also require significant changes in the Directives for their approval. But, as the Parliament does only has a consultative role due to their limited oversight of all Euratom issues, their possibilities to change the Directive are slim.