EU initiatives following Fukushima nuclear accident: amending the Nuclear Safety Directive and establishing the “EU Liability Regime”
Judit Silye[1]
EURATOM Advisor
Hungarian Atomic Energy Authority
Abstract
During the Hungarian EU Presidency period, on 25 March 2011, following the nuclear accident in Fukushima, the European Council concluded that the safety of all EU nuclear plants should be reviewed, on the basis of comprehensive and transparent risk and safety assessments ('stress tests').
On October 2012, the European Commission released a Communication on the results of the stress tests. This document highlights that European nuclear power plants have generally high safety standards but further improvements are needed in almost all of them. In this Communication, the European Commission identified the need to enhance the regional and global cooperation and the review of the legislative framework for the safety of nuclear installations in force. As the results of this review the European Commission started to work on the amendment of the 2009 Directive on Nuclear Safety and towardson the harmonized EU nuclear liability regime.
The proposal on the amendment of the nuclear safety directive was submitted to the Council of the European Union in June 2013. The negotiation between the EU Member States has been just completed within the European Council’s Working Party on Atomic Questions (hereinafter: WPAQ) and the Council Directive issued in July 2014. Interesting debates took place during the meetings and mainly focused on the role and independence regulatory authorities and on the new European system of peer reviews of nuclear installations.
Concerning nuclear liability, the preparatory work had started within the European Commission. Nuclear Liability Group was established and its three Subgroups (WG 1: claims handling and related matters; WG 2: insurance, operator’s pools and other financial security; WG 3: liability amounts and other issues) provided number of recommendations. The European Commission conducted a public consultation between 30 July and 22 October 2013. Stakeholder Conference on Nuclear Third Party Liability and Insurance was held in February 2014. This event provided the opportunity to discuss the most important issues related to nuclear third party liability and insurance, in particular in the light of the recommendations adopted by the Nuclear Liability Group and the outcomes of the public consultation.
This paper intends only to present the establishment of the amendment of the Directive on Nuclear Safety and the key issues occurred during the negations of that within the WPAQ meetings, as the European Commission is yet to submitwritten legislative proposals to the Council of the European Unionon the issue of nuclear liability.
Context
Following a major earthquake, a 15-metre tsunami disabled the power supply and cooling of three Fukushima Daiichi reactors, causing a nuclear accident in the East part of Japan on 11 March 2011. The accident was rated 7 on the INES scale, due to high radioactive releases. [1]
The Fukushima nuclear accident renewed attention on the paramount importance of ensuring the high level of nuclear safety in the EU and worldwide, therefore the EU response to this accident was immediate.
The Fukushima nuclear accident occurred during the period of the Hungarian Presidency of the Council of the European Union[2] (hereinafter referred as Council). Following the High Level Conference (with the participation of political representatives, regulators and industry) on 15 March at European Commission’s (hereinafter referred as COM) initiative, the Hungarian president of the WPAQ convened an extraordinary meeting of the WPAQ on 16 March. At this meeting the COM debriefed the main outcomes of the mentioned High Level Conference which were agreed on by the participants:
-consensus on having a European approach on safety, non-EU countries should be involved and this should be done on a global scale;
-the EU approach should include stresstests;
-common criteria of these test have to be worked out;
-consideration was to be given to the possible revision of the Directive on Nuclear Safety [2].
As a result of the suddenly held meeting, most of the delegates had no instructions from the capitals. Therefore, in the light of the ensuing exchange of views, the Chairman of the WPAQ could identify the main points:
-the most urgent step is to offer the assistance to the Japan (people, nuclear sector);
-broad support was given to the European approach for a comprehensive safety and risk assessment (stress-test) and the technical basis of that should be provided by the ENSREG[3];
-the importance of participation of the neighbouring countries in the stress-test was stressed;
-attention should be paid to the communication with the public due to the lengthy stresstest procedure. [3]
On 24/25 June 2011, the European Council[4] held its first meeting of the year and adopted its Conclusions [4]. Concerning the Japanese nuclear accident, the European Council
-stressed the need to fully draw the lessons learnt of the accident and to provide the necessary information to the public;
-agreed on the comprehensive safety and risk assessment of the European nuclear power plant (stress-test);
-invited ENSREG and the COM to develop the scope and modalities of the stress tests by making full use of available expertise (notably the WENRA[5]);
-highlighted that the highest standard for nuclear safety should be implemented and continuously improved;
-called the COM for reviewing the existing legal and regulatory framework for the safety of nuclear installation [2] and proposing any improvements if necessary;
-called on the Member States to fully implement the Directive on Nuclear Safety;
-called on the Member States toadopt the Directive on the Management of Radioactive Waste and Spent Fuel [5] as soon as possible.
After the mandate given to the COM by the Council, the COM released a communication to the Council and the European Parliament on the stress test of the nuclear power plants in the EU and related activities [6], in which it gave an overall positive assessment of current European safety standards but highlighted the need for further upgrades in order to ensure better consistency among Member States and catch up with international best practices.
This communication also represented the activities ran in parallel after the nuclear accident occurred in Fukushima. Among many layers, the following should be highlighted concerning the EU Nuclear Safety Framework:
-Implementing the existing nuclear safety legislative framework
The COM reviewed the transposing measures of the Member States whether they comply with the provisions of the Directive on Nuclear Safety [2] or not. (Infringement proceedings were initiated in some cases.)
-Improving the legislative framework for nuclear safety:
Revision of the Directive on Nuclear Safety
The lessons learned from the Fukushima accident and the conclusions of the stress tests should be properly and consistently implemented in the EU and reflected in the legislative framework. Numbers of weaknesses with the existing EU nuclear safety framework havebeen identified. In order to address these, the Nuclear Safety Directive requires revision in the following area:
a)Safety procedures and frameworks: the scope of the existing Nuclear Safety Directive is limited to overall principles, hence it cannot address the technical safety issues identified in the Fukushima nuclear accident and the stress tests. The main framework recommendations arising from the stress tests need to be translated into agreed mechanisms anchored in the revised directive on which the national regulatory authorities can base their independent decisions. The revised directive should include provisions that require Member States to have in place appropriate on-site emergency preparedness and response measures. Specific attention needs to be paid to the safety of new nuclear installations. While the revised directive can define basic parameters and safety objectives, the role of ENSREG in providing guidance for their implementation needs to be defined. For new reactors, WENRA safety objectives should be considered in the directive.
b)Role and means of nuclear regulatory authorities: the effective independence of nuclear regulatory authorities needs to be strengthened and the appropriate means of action that they have should be guaranteed.
c)Openness and transparency:transparency of regulatory decisions and regular provision of information to the public by nuclear operators should be extended and specified.
d)Monitoring and verification. The provisions on monitoring and verification should be extended to other areas than the review of the national regulatory framework.
Nuclear Insurance and Liability
The analysis of provisions for the compensation of victims in case of nuclear incidents or accidents is not covered at all by the current EU legislative framework. The COMhas started to analyse to what extent the situation of potential victims of a nuclear accident in Europe should be improved, within the limits of EU competence. The Commission intended to propose binding legislation in the area of nuclear insurance and liability.
The last step of the chronology of the establishment of the first proposal on the amendment of the Directive on Nuclear Safety is that in March 2013, the European Parliament was adopted a resolution [7] in which it supported the COM initiatives concerning the improvement of the legislative framework.
Proposal of the European Commission (COM(2013) 715 final) – development of the proposal
On 25 June 2013, at the meeting of the WPAQ, the COM presented at first the main features of the legislative proposal [8], drawing on the results of the stress tests, to revise and strengthen the provisions of the current nuclear safety directive. It proposed to reinforce the role and independence of national regulatory authorities, to increase transparency, to enhance on-site emergency preparedness and response, and to introduce a European system of peer reviews of nuclear installations, along with specific safety reviews of older nuclear power plants.
According to Article 31 of the Euratom Treaty the COM had to obtain the opinion of a group of persons appointed by the Scientific and Technical Committee (provided on 26 March), and the Economic and Social Committee (hereinafter referred as EESC) (adopted in 18 September), therefore the final proposal was submitted to the Council 17 October 2013 [9].
In its opinion of the Group of Experts referred to in Article 31 of the Euratom Treaty, the experts welcomed the proposal especially the aim of strengthen the independence and the transparency of the regulatory body decision, the introduction of requirements on on-site emergency preparedness and response, the enlargement of the obligation of the Member States stating that the expertise and skills are required not only for the staff having responsibilities to the nuclear safety but also to on-site emergency preparedness and response arrangements, but they also expressed their concerns and noted mainly that:
this consultation takes place at an early stage of development of the proposal for a Nuclear Safety Directive and that the proposed text may still undergo significant changes;
the development of the requirements regarding personnel of the competent regulatory authorities for nuclear safety with necessary qualification, experience and expertise and recommended to highlight the need that such personnel should include those with qualifications, experience and expertise not only in nuclear safety but also in radiation protection, in accordance with the requirements in the revised Basic Safety Standards Directive (hereinafter referred as EU BSS)[10];
that in a recital should the interface between on-site and off-site emergency preparedness and response be clarified;
terms and concepts should be consistent with respective terms and concepts in the EU BSS;
that provisions under Article 37 of the Euratom Treaty are already in place giving competences to the Commission to assess whether planned nuclear installations are liable to result, both in normal operation and in the event of an accident;
the fundamental principle of optimisation of protection (particularly in relation to potential exposures) should be taken into account;
that the Directive on Nuclear Safety should periodically revised in line with the evolving international safety standards.
The EESC also positively welcomed the prompt amendments of the Nuclear Safety Directive. However the EESC encouraged several issues addressed in the proposal such as a stronger approach to harmonisation amongst Member States, clarification of regulatory responsibilities, competence and capacity, the independence of national regulators, and action on on-site emergency preparedness and response, as well as the strengthened approach to overall transparency, it suggested
ensuring the consistency with the internationally agreed definition;
taking the necessary action in response to recommendations from the in-progress report on off-site emergency preparedness, when available;
strengthening public involvement in planning, review and decision-making;
taking into account that international analysis of the lessons to be learned from Fukushima continues and that a review of the implementation of the current Nuclear Safety Directive may suggest further safety insights in due course.
ENSREG also provided its opinion on the COM’s proposal but it is important to outline that there were no consensus among the members of ENSREG on some of the issues raised in their opinion [11]. ENSREG’s opinion was divided in conjunction with the justification to actually revise the current directive from a technical point of view and the timetable for the process (priority should be given to first evaluate the current directive, before to decide on its revision). Concerns existed among the members about that the suggested changes of the directive will shift resources within the competent regulatory bodies from supervision of the nuclear installations to negotiations within EU and peer reviews.
ENSREG proposed especially (that)
-the proposal should set ambitious safety objectives - in line with the principle of continuously improving nuclear safety - instead of detailed and fixed safety criteria, which would primarily complement the work of the IAEA and, on the other hand, the work of the national regulators of the Member States;
-to develop a mechanism to translate the ambitious safety objectives into concrete recommendations including a follow-up of actions (a closed loop) and topical reviews as an inter-regulatory instrument to ensure high quality nuclear safety regulation across Europe (This process is additional to the already existing instruments such as periodic safety reviews (PSR) and builds upon the valuable experience that was gained from the European Stress Test exercise.);
-the regulator and the operator develop, publish and implement a transparency strategy, which should cover, inter alia, normal operating conditions of nuclear installations, non-mandatory consultation activities with the workers and the general public and communication in case of incidents and accidents;
-to strengthen the competent regulatory authority, which is a fundamental condition of the European nuclear safety regulatory framework (ENSREG emphasized that, in order to avoid any conflict of interest, the key criteria is the effective independence from undue influence in the decision making.).
Reference should also be made to the COM’s impact assessment which provides for the background and clarifying and justifying its initial proposal.[13]
Before the Commission tabled its final proposal [9] in October 2013, it engaged in an extensive and transparent dialogue process with the various stakeholders and the public, which included launching an open consultation via the Internet as well.
As a result of the above mentioned procedures of the development of the final proposal, the COM aimed at enhancing the regulatory framework for nuclear safety in the EU by
–strengthening the role and effective independence of the national regulatory authorities;
–enhancing transparency on nuclear safety matters;
–strengthening existing principles, and introducing new general nuclear safety objectives and requirements, addressing specific technical issues across the entire lifecycle of nuclear installations, particularly NPPs;
–reinforcing monitoring and exchange of experiences, by establishing a European system of peer reviews;
–establishing a mechanism for developing EU-wide harmonised nuclear safety guidelines.
Main features of the proposal [6][12]
The proposed new requirements of the Directive on Nuclear Safety would apply to nuclear installation defined in the definitions. In case of those Member States which do not have any nuclear installations, the Directive would apply in a proportionate manner and in accordance with the national circumstances, thus some provision would apply and some do not.
Objectives
Article 1 is complemented with a new objective aiming at ensuring the avoidance of radioactive releases during all stages of the lifecycle of nuclear installations (siting, design, construction, commissioning, operation, decommissioning).
Definitions
In Article 3, new definitions are introduced corresponding to terms used in the new provisions, such as defence-in-depth, reasonably achievable, design basis, abnormal event, accident and periodic safety review.
Legislative, regulatory and organisational framework
Article 4 is amended in order to enhance the effective independence of the regulatory body. New requirements include ensuring effective independence in decision-making, own appropriate budget allocations and autonomy in implementation, clear requirements for the appointment and dismissal of staff, avoidance and resolution of conflicts of interests, and staffing levels with the necessary qualifications, experience and expertise. Moreover, in their decision-making, they must be free from undue influence and political, economic or societal interests must not override safety issues.
Through the amendment, these provisions are further detailed to ensure that regulators possess the appropriate powers to carry out a strong regulatory oversight. For this purpose, the core task of the competent regulatory authority to define national nuclear safety requirements is added to the existing catalogue of regulatory competencies.
Transparency
The existing provisions of Article 8 of the Nuclear Safety Directive are limited to generic requirements on public information. Moreover, this Article does not impose any obligation on the licence holder, who has the prime responsibility for nuclear safety. To fill these gaps, in the proposed amendment, new requirements were added: the regulatory body and the licensee should develop transparency strategy, which covers information provision under normal operating conditions of nuclear installations as well as communication in case of accident or abnormal event conditions and the effective participation is provided for the in the licensing process of nuclear installations.