Documents considered by the Committee on 8th December 2010 - European Scrutiny Committee Contents

5 Management of spent nuclear fuel and radioactive waste



COM(10) 618

+ ADDs 1-2

Draft Council Directive on the management of spent fuel and radioactive waste

Legal baseArticles 31 and 32 Euratom; consultation; QMV
Document originated3 November 2010
Deposited in Parliament5 November 2010
DepartmentEnergy & Climate Change
Basis of considerationEM of 18 November 2010
Previous Committee ReportNone, but see footnotes
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionNot cleared; further information awaited


5.1 In January 2003, the Commission produced two legislative proposals on nuclear safety, one[31] concerned with the safety of nuclear installations, and the other[32] with the management of spent nuclear fuel and radioactive waste.[33] In the latter case, it highlighted the broad international consensus that disposal of the more hazardous High Level Waste by isolation for extremely long periods of time, deep in stable geological formations, is the most suitable option, and the delay in a number of Member States in identifying and authorising suitable sites, resulting in increasing quantities of spent nuclear fuel and waste being held in interim storage at or near the surface.

5.2 It therefore proposed that Member States should develop appropriate strategies and programmes for the long-term management of all their waste types, with the emphasis on the development of repositories for deep disposal, and it set out a number of obligations which they would have to meet. In particular, they would be required to establish a definite timetable for each step of the disposal process.

5.3 The then Government's view was that a convincing case had not yet been made for Community (rather than Member State) action, and that the proposal would represent a major extension of the Commission's nuclear legislative framework, which was not consistent with the subsidiarity provisions within the Euratom Treaty. It also drew attention to the reservations expressed by the UK and some other Member States over the legal base proposed by the Commission, as well as major practical difficulties in relation to the review being undertaken of the UK's radioactive waste management policy, where there was no presumption in favour of any particular disposal option. Concern was also expressed at the very considerable costs (in the region of £10 billion) involved in the construction of a deep disposal facility.

5.4 Since a difference of view existed between those Member States which favoured a Directive and those — including the UK — which were arguing for a non-legally binding Council Resolution, draft Council Conclusions were drawn up, reflecting the commitment of all Member States to the safe management of radioactive waste, and the need for extensive consultations. However, it seemed unlikely that the Commission would make any new proposal for binding legislation, at least in the short to medium term.

5.5 Despite this, the Commission put forward in September 2004 an amended proposal.[34] This purported to have taken on board views expressed by the European Parliament and the Council, but — although less prescriptive — it still contained many of the features of the original proposal, and in particular would have required Member States to develop clearly-defined programmes, and to study the possibility of deep disposal. The Government remained opposed to such a measure, and a previous Committee reported these developments to the House on 27 October 2004, when it asked to be kept informed of any further developments, whilst holding the document (and the earlier proposal) under scrutiny in the meantime.

The current proposal

5.6 The EU has since adopted the Nuclear Safety Directive[35] (2009/71/Euratom), establishing a framework for the safety of nuclear installations, but this covers only storage facilities which are on the same site and directly related to the installation, and, following a request from the Council, the Commission has now put forward this further proposal which would address the wider issues arising from the storage and management of spent fuel and radioactive waste. In particular, it would seek to set up of a EU framework to ensure the protection of workers and the general public; implement the highest safety standards; avoid imposing undue burdens on future generations; achieve a sustained political commitment to the long term management of spent fuel and radioactive waste; and ensure adequate and transparently managed financial resources are available, in accordance with the "polluter pays" principle.

5.7 In doing so, the Commission says that the European Court of Justice has ruled that the Euratom Treaty confers upon it powers of considerable scope in relation to health and safety, enabling it to "supplement" existing basic safety standards, and it argues that the issue of spent fuel and radioactive waste management is clearly an area where the cross-border aspect of safety makes it necessary for national legislation to be supplemented at EU level. It also notes that, although the ultimate responsibility in this area rests with Member States, it remains the case that most have yet to take key decisions, especially in relation to spent fuel and high level waste.

5.8 As regards the scope of the proposal, the Commission notes that, although safety standards at international level have been developed by the International Atomic Energy Agency (IAEA), these are not legally binding, and that there are no sanctions for non-compliance with the provisions of the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. Consequently, one aim of this proposal is to make these internationally endorsed principles legally binding and enforceable, and to lay down specific requirements for the scope, contents and review of national programmes, applying these to all stages of the management from the generation of waste to its disposal. The proposal would not, however, apply to waste from military and defence programmes, or to areas covered by other EU legislation (such as the early exchange of information in the event of an emergency, the control of high-activity sealed radioactive sources and orphan sources, the management of waste from extractive industries, and the supervision and control of shipments of radioactive waste and spent fuel).

5.9 In particular, the proposal would require Member States:

  • to establish national policies which ensure that the generation of radioactive waste is kept to the minimum practicable in terms of both activity and volume by suitable operating and decommissioning practices, including recycling and reuse, that no undue burdens are imposed on future generations, that spent fuel and radioactive waste are safely managed, including in the long run, and that waste should be disposed of in the Member State where it is generated, unless it is agreed that disposal facilities in another Member State will be used;
  • to establish a national framework which allocates responsibilities and provides for coordination between relevant state bodies, and which includes a system for the licensing of activities and facilities, a system of appropriate institutional control, inspection, documentation and reporting, and enforcement actions (including suspension of activities and licence revocation);
  • to establish a regulatory competent authority, which is functionally separate from any other body concerned with nuclear energy or radioactive material, and has the legal powers and resources needed to fulfil its obligations;
  • to ensure that the prime responsibility rests with licence holders, who must regularly assess and improve the safety of their activities, and put in place measures to prevent accidents and mitigate their consequences, as well as maintaining adequate financial and human resources; and
  • to ensure that information on the management of spent fuel and radioactive wastes is made available to workers and the general public;
  • to establish and implement programmes for the management of all stages of spent fuel and radioactive waste under their jurisdiction, from generation to disposal.

5.10 The proposal would also specify the contents of national programmes, such as the need for an inventory of all spent fuel and radioactive waste, including that from future decommissioning; an indication of the location and amount of material and the level of hazard involved; plans for the post-closure period of a nuclear facility; major milestones, clear timeframes, and responsibilities for implementation; key performance indicators; an assessment of programme costs; and a description of the financing schemes in force to ensure that costs under the schedule foreseen can be met. Member States would also be required to notify the Commission of their national programmes and of subsequent significant changes, and to submit to it a report on the implementation of the Directive.

The Government's view

5.11 In his Explanatory Memorandum of 18 November 2010, the Minister of State at the Department for Energy & Climate Change (Mr Charles Hendry) says that, whilst the draft proposal is an improvement on earlier versions, there are a number of issues which need to be resolved.

5.12 He suggests that the main concern is the emphasis which the draft Directive places on high-level waste, which does not adequately recognise the different management options that have been (or could be) adopted for intermediate-level and low-level waste. In addition, the Commission has argued that the storage of spent fuel and radioactive waste (including long-term storage at or near surface) is an interim solution only and not a true alternative to disposal, which the Minister says is a fundamental issue for the Scottish Government, as it goes against its policy of managing higher activity waste in long-term near surface, near site, storage or disposal facilities so that it can be monitored, is retrievable, and does not have to be transported over long distances. The Minister adds that the proposal is also not in line with UK low-level waste policy, which recognises incineration, landfill and decay storage as viable and important options for the management of some types of waste, and he says that his department is currently agreeing a cross-government position, aimed at ensuring that any binding instrument is non-prescriptive.

5.13 The Minister also expresses concern that significant waste arising from military and defence programmes could be be caught by the proposed Directive. He points out that, where this is not managed within civilian activities, it is excluded from the Euratom Treaty, and that, although such an exclusion is implied in the draft proposal, the UK is seeking to ensure that radioactive material originating from these programmes and clearly separated from civilian waste is explicitly excluded.

5.14 The Minister goes on to point out that there is currently nothing within the UK regulating framework that requires a National Programme, although domestic and international obligations mean that it already has some elements of a Programme in place. He says that an Impact Assessment on the potential additional burden for Government and businesses arising from the draft proposal is currently being developed in consultation with the devolved administrations and with health and safety and environmental regulators. He also notes that the draft requires Member States to have a national framework in place guaranteeing that adequate financial resources are available, and that the Government is currently considering this requirement, particularly as the draft proposal applies to radioactive waste from both the nuclear and non-nuclear sectors.


5.15 Although this proposal appears to be less prescriptive than those previously put forward by the Commission, it is clear that it contains a number of elements which could still create difficulties for (and within) the UK. In view of this, and the evident political importance of the subject it is addressing, we think it likely that we will wish to recommend the document for debate in European Committee, but, as the Government has said that it will be providing an Impact Assessment, we propose to defer a decision on its future handling until we have received that. In the meantime, we are drawing the document to the attention of the House.

31   (24507) 8990/03: see HC 63-xxix (2002-03), chapter 8 (10 July 2003), HC 42-iii (2003-04), chapter 3 (17 December 2003) and HC 42-xxii (2003-04), chapter 4 (16 June 2004). Back

32   (24704) 8990/03: see HC 63-xxix (2002-03), chapter 4 (10 July 2003) and HC 42-xxii (2003-04), chapter 6 (9 June 2004). Back

33   So-called Low and Intermediate Level Waste is generated by a range of applications in medicine, industry, agriculture, research and education, and by electricity production in nuclear power plants, whilst the latter also generates High Level Waste in the form of spent fuel. Back

34   (25999) 12386/04: see HC 42-xxxiv (2003-04), chapter 5 (27 October 2004). Back

35   OJ No. L.172, 2.7.2009, p.18. Back

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