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Nuclear Transparency Watch

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Transparency and Public participation

Important issues concerning the criteria in the Draft Delegated Act on inclusion of gas an nuclear in the Taxonomy for Sustainable Finance

Jan Haverkamp
for Greenpeace and WISE International
06-01-2022

1. Deep geological disposal of high-level waste does not fulfil the DNSH criterion
In order to circumvent the DNSH criterion, the EC has followed the further not justified conclusions from
the JRC that deep geological disposal would be a solution for the high-level and long-lived radioactive waste
fractions in the nuclear fuel chain. There is no consensus that deep geological disposal is practicable and
there is, not even in Finland, any deep geological disposal currently in operation that has a proven safety
case. There is furthermore definitely no scientific consensus about the fact that deep geological disposal
resolves all intergenerational problems around radioactive waste. Examples of this include the need for
retrievability of the waste (in case better solutions are found or problems in the disposal occur – see for
instance the recent problems in the low- and mid-level waste storages in Asse II and Morsleben in Germany),
the need for passing crucial information to future generations, the need for security overview for future
generations, the need for monitoring for future generations. The JRC report completely ignores these issues,
but the conclusions is very clear: deep geological disposal does not resolve the DNSH problem.

2. Also when deep geological disposals are available in 2050, high-level radioactive waste will
remain a multi-generational operational problem
Besides the issues mentioned above, when a geological disposal will come available for operation before
2050, it still will be 60 to 80 years in operation before it is filled, backfilled and closed. That means that in
that case two to three generations will be burdened with operational work and economic burdens from
decisions made in the current decade. This period will have to be prolonged, if it is decided that retrievability
needs to be secured for a longer period.

3. There are in the DA no clear criteria about the quality of a deep geological disposals
The Taxonomy is to promote sustainable, green financing. The currently operated criteria for radioactive
waste in the Euratom directive 2011/70/EURATOM on radioactive waste are not specific about to which
quality standards a deep geological disposal has to adhere. This is at the moment mainly organised in
national legislation of the few countries that are attempting to create a deep geological disposal: Finland,
Sweden, France.
In order to secure that the criterion of an operational deep geological disposal in 2050 indeed fits in a
Taxonomy for sustainable financing, the DA would have to contain minimal criteria for the quality of
such a deep geological disposal site, including criteria on long-term safety, security, retrievability of
deposed materials, status and preservation of information in strict adherence to the DNSH criterion.
These criteria are currently missing.

4. There are in the DA no clear criteria about the quality of the plans with detailed steps to
have in operation, by 2050, a disposal facility for high-level radioactive waste
In the current formulation, such a plan could consist of three lines. That is, of course, not what the
Commission has in mind. In order to fulfil the DNSH criterion, such plans should be of such quality that they
more or less guarantee that a high quality, safe deep geological disposal site is in operation in 2050.
Therefore, the DA should contain concrete criteria for these plans – and timelines – in order to minimise the
chance that such deep geological disposals will not be of sufficient quality and not in operation in 2050.
These criteria should include issues like transparency, public participation, engineering quality criteria,
criteria on BAT (Best Available Technology), criteria on BRP (Best Regulatory Practice) and checkpoints
during the timeline where the Commission can conclude whether these criteria are met, and if not, withdraw
the project from approval under the Taxonomy. In order to fulfil the spirit of the Taxonomy on Sustainable
Finance, such criteria should go beyond Business as Usual criteria as set out in 2011/70/EURATOM and
2009/71/EURATOM.

5. The DA is not technology neutral: like with gas, the use of finance for nuclear should also be
part of a clear energy development plan consistent with 1.5° C
In the gas-part of the DA, criteria are introduced to basically guarantee that use of gas as an intermediate
source of energy has to be in line with a pathway keeping within Paris goals of 1.5° C. This includes an
obligation that the gas facilities need to replace existing facilities on solid or liquid fossil fuels and the
obligation for the Member State to have committed to a phase-out of the use of energy generation from coal.
For nuclear energy, similar criteria should be developed and incorporated that secure a pathway in line with
the Paris goals of 1.5° C. The use of nuclear power should not unnecessary delay phase-out of fossil fuels,
especially solid and liquid ones – nor by diversion of capital, nor by timely delay waiting for the introduction
of nuclear capacity.

6. The DA locks in fossil fuel use beyond 2050
The criterion that a construction permit has to be issued by 2045 de facto means that the DA allows the
construction of nuclear capacity that will not be able to replace solid or liquid or gaseous fossil fuels before
2050, ergo will allow for fossil fuel use to beyond 2050. This is not in line with the EU’s goal of full
decarbonisation in 2050. It has to be assumed that the construction time of a nuclear power plant is at least a
decade, which means that when the Commission is foreseeing use of coal or oil until 2045, only nuclear
power plants with a construction license before 2035 will be able to replace coal or oil – if the Commission
wishes a reduction of coal and oil in the electricity sector before that date, also the limit for when a
construction permit must be granted has to be moved forward, with at least a decade of space for
construction.

7. Stricter criteria for export of radioactive waste
In a Taxonomy for Sustainable Finance, practices that carry the risk that material is exported outside the
Union ending up as waste have to be excluded. Therefore the criteria for export of nuclear material labelled
as resource have to exclude such exports in which there is the slightest chance that it will not be fully used as
resource and may result in (partially or full) waste dumping in third countries.

8. Emergency preparedness and response to severe nuclear accidents is insufficient. There
need to be criteria that secure emergency preparedness and response is sufficient to meet
severe (INES 7) accident challenges
The post-Fukushima nuclear stress tests carried out in the EU did not include emergency preparedness and
response. The European Commission has tried to start up a debate about the issue, but it has not resulted in a
systematic improvement of emergency preparedness and response concerning severe (INES 7) nuclear
accidents anywhere in the Union. It needs to be kept in mind that the severity of these accidents (with
potential damage in excess of 400 Bln€) is far larger than the potential damage of any accident with the
technologies currently covered by the Taxonomy. If nuclear is accepted for financing towards the climate
targets set out by the EU, any gap in emergency preparedness and response needs to be filled to prevent
backlashes in case one or more severe accidents would happen on the territory of the Union.

9. IAEA and WENRA standards are voluntary – they need to be made compulsory in the
Taxonomy
The IAEA and WENRA safety guidelines are detail guidelines to improve safety of nuclear power plants.
They are, however, not obligatory, but only advisory guidelines with no compliance mechanism to secure
their adherence. Some Member States have included the WENRA guidelines as compulsory in their national
legislation. For inclusion in the Taxonomy, adherence to the IAEA and WENRA guidelines should be more
clearly compulsory in the DA criteria, including compliance mechanisms.

Leaked delegated regulation of the European Union on the ‘Taxonomy’ related to nuclear & gas

A delegated regulation from the European Union on the ‘Taxonomy’ related to nuclear & gas leaked very recently
(cf. Germany hits out at Brussels plan to label nuclear and gas ‘green’ – POLITICO & LEAK: EU drafts plan to label gas and nuclear investments as green – EURACTIV.com).

Nuclear Transparency Watch has decided to publish it as well in the name of Transparency:




Open letter on Public Participation for Nuclear Energy in the European Taxonomy

After the open letter sent by Nuclear Transparency Watch the 20th of July 2021 in the context of the debates around Nuclear Energy and European Taxonomy  – see article – an answer was given on the 29th of November by the European Commission – here – that was not answering how and when this Public Participation will take place.

Therefore, Nuclear Transparency Watch asked the Commission in a CONFIRMATORY REQUEST on the 30th of November under the
EU Aarhus Regulation 1367/2006/EC reminding its obligation regarding it.

In addition to the previous article on the subject and aside all the political statements made on this issue, Nuclear Transparency Watch produced a cross-cutting analysis of different reviews made of the JRC report. This document can help understand how the scientific basis used by the European Commission is not going without any criticism.

Open letter on how and when public participation will take place in the European Taxonomy.

“In order to meet the EU’s climate and energy targets for 2030 and reach the objectives of the European green deal, it is vital that EU directs investments towards sustainable projects and activities. This is achieved by the action plan on financing sustainable growth called for the creation of a common classification system for sustainable economic activities, or an “EU taxonomy”. The Taxonomy Regulation, published in the Official Journal of the European Union on 22 June 2020, establishes the basis for the EU taxonomy by setting out 4 overarching conditions that an economic activity has to meet in order to qualify as environmentally sustainable.

Under the Taxonomy Regulation, the European Commission had to come up with the actual list of environmentally sustainable activities by defining technical screening criteria for each environmental objective through delegated acts. A first delegated act on sustainable activities for climate change adaptation and mitigation objectives was adopted on 4 June 2021. Already in 2020 the EC launched in-depth work to assess whether or not to include nuclear energy in the EU taxonomy of environmentally sustainable activities. As the first step, the Joint Research Centre drafted a technical report on the ‘do no significant harm’ aspects of nuclear energy. This report has been reviewed by two sets of experts, the Group of Experts on radiation protection and waste management under Article 31 of the Euratom Treaty, as well as the Scientific Committee on Health, Environmental and Emerging Risks on environmental impacts. It is planned to publish a second delegated act for the remaining objectives soon.

It is in this context that NTW has written this open letter to the Commission to ask when and how citizens will be consulted on whether or not to include nuclear energy in the European Taxonomy.”

REPLAY AVAILABLE : EP-NTW online seminar on Nuclear Energy and the EU Sustainable Finance Taxonomy

>> REPLAY <<

 

The seminar on Nuclear energy and the EU sustainable finance taxonomy took place on April 14th 2021. It was co-organized by the European Parliament and Nuclear Transparency Watch.

Nuclear energy is pushed forward from several sides as one of the technologies to be included in efforts to combat the climate emergency. It is argued that in order to help overcome its difficult market position, nuclear energy should be included in the EU Sustainability Finance Taxonomy. The Technical Expert Group for the preparation of the EU Sustainable Finance Taxonomy excluded nuclear energy on the basis of the Do No Significant Harm (DNSH) principle. This seminar wants to share viewpoints on the position of nuclear energy vis-à-vis the Taxonomy, and to explore ways in which transparency of a decision for or against inclusion can be increased.

Moderator: Patrizia Heidegger, European Environmental Bureau

Speakers:

– Patricia Lorenz, FoE Europe

– Claude Turmes, Minister of Energy of Luxembourg

– Wendel Trio, CAN Europe

– Ben Wealer, University of Berlin

Other EP-NTW organized seminars are planned to be held in autumn, on topics such as the costs of nuclear energy, hydrogen, and the Energiewende.

Overview of activists’ submissions addressing lack of public access to nuclear sector information in Slovakia

From Peter Mihok, member of NTW.

As the NTW informed on 12 May 2020 via Twitter and a new website item [1], both linking to the original factsheet prepared by its Slovak member [2] (note: the current updated factsheet is here [3]): for more than a decade, there exist crucial concerns with regard to public access to nuclear sector related information in Slovakia. This is due to an interplay between many controversial amendments of Environmental Impact Assessment (EIA) Act, Freedom of Information Act (FOIA), Atomic Act and other related acts, adopted since 2009. In the cumulative effect of all these amendments, the Slovak Nuclear Regulatory Authority (NRA) was provided with a new legal right to consider the complete content of nuclear sector documents as confidential, since 1 May 2010.

The above referred Slovak law amendments became subject of UNECE Aarhus Convention Compliance Committee (ACCC) scrutiny [4]. Originally, this was due to a dispossession of NGOs of their formal legal standing status in EIA procedures (appealed at the ACCC by the Austrian NGO GLOBAL 2000 / Friends of the Earth Austria on 28 July 2009 [5]).

Peter Mihók, the Slovak NTW member, explained in the two academic journal papers [6] that the introduction of a flat‑rate non‑transparency concerned particularly and only nuclear sector related information. Furthermore, he explained that the introduction of this flat-rate non‑transparency was a direct response of the Slovakian authorities to the outcomes of EU infringement procedure regarding non‑compliance of the Slovak EIA Act with the EU AIA Acquis (i.e. a very similar non‑compliance as the ACCC submission/case from 2009 referred in the paragraph above).

Some/relevant of the above referred laws have been “softened” here and then in 2011 – 2018, in order to “soften” the clauses that allowed flat-rate classification of documents/information related to nuclear sector as secret/confidential/classified. This was a consequence of the below referred findings about relevant Slovakia’s laws’ and legal documents’ non compliance with the Aarhus Convention in particular with regard to lacking public access to nuclear sector related information/documents. Due to a combination of a rather high number plus a rather lengthy and complicated nature of these ‘softening law amendments’, it was not possible for the Slovak and/or other relevant NTW member(s) to dealt with this topic, i.e. to a lack of capacities to deal with such a ‘legally expert topic’. The bottom line here is that Slovakia was unable to transpose the Aarhus Convention into its national legislation on public access to nuclear sector related information/documents for more than a decade.

Moreover, as explained in the updated NTW factsheet [7], the Slovak parliament approved another controversial FOIA amendment in 2019. This provided for yet more reasons to classify information/documents falling under the Slovak Atomic Act as confidential. This amendment extended possibilities to justify non‑transparency by banking secrecy, telecommunications secrecy, and/or postal secrecy. This became a subject of further UNECE ACCC scrutiny, under the procedure which concerned the decision VI/8i adopted by the Meeting of Parties to the Aarhus Convention at its sixth session [8], and which formally (re‑)started on 14 September 2017 [9].

Following more than a decade of disrespect to the Aarhus convention, several Slovakian activists joined their forces, and prepared the three different submissions to the Slovak authorities in  August – October 2020, all of them focused on Slovakia’s non‑compliance with the Convention with regard to nuclear sector related information/documents and/or project permit procedures.

Following the official information about plans of the Ministry of Justice (MoJ) to amend FOIA [10] (in order to transpose the EU Directive 2019/1024 from 20 June 2019 [11]), the Slovak NTW member Mr. Peter Mihók, together with the Slovak activist in radioactive wastes related issues Mr. Michal Daniška, submitted an official impetus to the MoJ [12] under the Slovak legal framework to influence preparation of laws/law amendments on 3 August 2020. In this impetus, they reminded the MoJ about the item 11 on p. 109 of the (pre‑)election program document of the Slovak Government current leading political party ‘OĽaNO’ [13] about ‘bringing an era of a flat rate non transparency of commercial nuclear sector information to an end’. In a justification of a relevancy of their impetus, they referred also to the Second ACCC progress review from September 2019 [14], by means of which the ACCC confirmed that it considered Slovakia not yet fulfilling the requirements of the above referred (and linked) Decision VI/8i.

In parallel to the activity referred in the paragraph above, the two Slovak lawyers – Ms. Dana Mareková (as a citizen of Slovakia, affiliated with the Austrian NGOs Global 2000 a Wiener Plattform Atomkraftfrei), and Mr. Peter Wilfling (NGO Via Iuris), prepared a detailed legal analysis of Slovakia’s non‑compliance with the Aarhus Convention with regard to nuclear sector related information/documents and permit procedures. In a form of a letter to the State secretary of the Ministry of Environment (MoE) Mr. Smatana [15] (CC: Minister of Justice Ms. Kolíková, and State secretary of the Ministry of Economy Mr. Galek), this legal analyses was sent to all the three relevant Slovak Ministries on 22 September 2020. This submission also requested to remove legislative and application barriers in the application of the Aarhus Convention in relation to a nuclear sector in Slovakia. This submission was also signed by the Slovak NGOs CEPTA and Via Iuris, the Slovak office of Greenpeace CEE, the Slovak Civic Initiative We want a healthy country, and also by Mr. Peter Mihók (the Slovak member of the NTW).

Without any relation to the above referred letter, on the same day, the Environment Minister Mr. Budaj informed at a press conference that also the monitoring committee of the Council of the European Union has approached Slovakia in relation to a potential non‑compliance with the Aarhus Convention specifically with regard to the nuclear sector information (see for ex. the TASR press release [16]).

On 1 October 2020, the Slovak members of the EURAD Civil Society Larger Group (Mr. Mihók and Mr. Daniška) submitted an official proposal to the MoJ[17]. In this submission, they requested the MoJ to amend the FOIA in a way revoking all the relevant FOIA amendments from 2010 – 2019 by means if which a flat-rate non‑transparency of commercial nuclear sector information has been introduced/expanded in the relevant Slovak laws. This proposal was supported (also signed) by the 32 members of the informal Slovak association of environmentalists [18].

Also on 1 October 2020, Mr. Mihók and Mr. Daniška sent an email/information to the UNECE Aarhus Convention Compliance Committee [19], in which they informed the ACCC members about all the three above referred citizen submissions to the Slovak authorities.

[1] https://www.nuclear-transparency-watch.eu/activities/transparency-and-public-participation/towards-an-end-of-flat-rate-non-transparency-in-the-slovak-nuclear-sector.html

[2] https://www.nuclear-transparency-watch.eu/wp-content/uploads/2020/05/20200512__Mihok__Slovakia_transparency_update-_-NTW_factsheet.pdf

[3] 20201116__Mihok__Slovakia_transparency_update-_-NTW_factsheet

[4] https://www.unece.org/env/pp/compliance/Compliancecommittee/41TableSlovakia.html

[5] https://www.unece.org/fileadmin/DAM/env/pp/compliance/C2009-41/Communication/Aarhus090701.doc

[6] https://doi.org/10.1057/kmrp.2011.22 and https://doi.org/10.1016/j.pnucene.2019.103192.

[7] 20201001__Mihok__Slovakia_transparency_update-_-NTW_factsheet

[8] http://www.unece.org/fileadmin/DAM/env/pp/compliance/MoP6decisions/Compliance_by_Slovakia_VI-8i.pdf

[9] http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/implementation-of-decisions-of-the-meeting-of-the-parties-on-compliance-by-individual-parties/sixth-meeting-of-the-parties-2017/decision-vi8i-concerning-slovakia.html

[10] https://www.slov-lex.sk/legislativne-procesy/SK/PI/2020/146

[11] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2019.172.01.0056.01.ENG

[12] 20200803__Slovakia__copy_of_Impetus_to_MoJustice

[13] https://www.obycajniludia.sk/wp-content/uploads/2020/02/OLANO_program_2020_FINAL_online.pdf.

[14] http://www.unece.org/fileadmin/DAM/env/pp/compliance/MoP6decisions/VI.8i_Slovakia/Correspondence_with_Party/Second_progress_report/Second_progress_review_on_VI.8i_Slovakia_adopted.pdf

[15] 20200922__Slovakia__copy_of_Letter_to_3_Ministries

[16] https://www.tasr.sk/tasr-clanok/TASR:20200922TBB00140

[17] 20201001__Slovakia__copy_of_Proposal_to_MoJustice

[18] www.ochranari.sk

[19] 20201001__Slovakia__copy_of_email_to_the_ACCP

Belgian nuclear waste programme SEA – public participation – too little, too biased

Jan Haverkamp, WISE, Amsterdam

9 June 2020

NIRAS/ONDRAF, the Belgian nuclear waste management organisation wrote a draft plan for long term management of high-level radioactive and/or long-lived nuclear waste. In a public consultation, people and (Belgian) authorities can react on this plan and a Strategic Environmental Assessment (SEA) until 13 June 2020. NTW member WISE has written an extensive reaction (in Dutch).

WISE’s general conclusion is that this SEA shows that NIRAS has a too limited view on which environmental effects and risks can in this stage already be estimated, and should have been estimated and described. NIRAS furthermore shows some strong biases on the necessity of production of this waste and in favour of the choice of one technological pathway. All considerations around prevention of waste were explicitly excluded from the SEA paper, and the justification given for the choice of deep geological disposal in Boom or Iperian clay were not covered by the documentation. This bias also caused a certain tunnel vision in the analysis of possible alternatives. This is remarkable, because a similar limitation of view already led to rejection of an earlier programme for deep geological disposal in the Boom clay in 2015 by nuclear regulator FANC. 

NIRAS wrote a methodologically defensive SEA report. Normally spoken, one would expect an inventory of important aspects and an as good as possible qualitative overview of impacts, as well as where possible a quantitative analysis. NIRAS, however, excluded everything that had any form of uncertainty. This created an oversimplified picture. Where it, for instance, devoted a lot of space to calculate the expected amount of lorries per day for transport in different phases over the coming 100 years, there was no analysis of any risks due to severe accidents during the filling of a repository, or later due to human interference. 

More specifically: 

  1. The programme should pay more attention to the fact that the current default solution for high level wastes is temporary storage. This means that, that also the environmental impacts of this interim storage are an integral part of every final disposal option. NIRAS only mentions temporary storage as the zero-option, but fails to take up the existing environmental impacts of temporary storage into its plans for final deposition;
  2. The programme, in this stage, should include a broader field of environmental impacts should; Incidents and accidents should not be excluded in this stage;
  3. The programme does not take alternatives sufficiently seriously;
  4. There lacks sufficient transboundary analysis;
  5. NIRAS concentrates too much on quantitative analysis of small and often marginal details and turns its back actively to all factors that could have substantial environmental effects (incl. incidents and accidents, and human interference). Instead of giving a good qualitative overview, NIRAS only offered a limited amount of detail facts of those few factors it could in this stage fully oversee, and excluded all other factors.
  6. The complexity of environmental impacts of different options for final deposition should be more clearly acknowledged and described in a comparison between different alternatives, and in comparison with prevention of production of different types of radioactive waste.

WISE concluded that this SEA from NIRAS does not fulfil the criteria that can be expected of a good SEA for a plan for management of long lived and high-radioactive waste. For that reason it requests it to be rejected.

Towards an end of flat-rate non-transparency in the Slovak nuclear sector?

May, 12th 2020

From Peter Mihok, member of the Slovak nongovernmental organisation ‘CEPTA – Centre for Sustainable Alternatives’ and member of NTW.

In the 2000s, the Slovak Nuclear Regulatory Authority (NRA) faced significant challenges with respecting a rather strict tenor of the Slovak Freedom of Information Act (FOIA) (1). Since May 2010, a controversial FOIA amendment allowed the NRA to consider the complete content of nuclear sector documents confidential, in contrast with the previous practice of blacking out confidential and/or sensitive information (2). A significant amount of evidence suggests that this FOIA amendment was made as a part of long‑term efforts to dispose NGOs of their former rights for real participation in the Environmental Impact Assessment (EIA) and permit procedures of related investment projects, in particular to disallow NGO participation in decision‑making regarding the Mochovce nuclear power plant (NPP) completion (3). Moreover, the European Commission (EC) had threatened Slovakia with withholding the refund of about €8 billion from the EU structural funds in 2009 because of removing NGO rights in the EIA Act amendment from 2007, on a top of launching an infringement procedure against Slovakia because of removal in 2008, in order to force Slovakia to correct the EIA Act “back into its original compatibility with the EU Acquis” (3). Furthermore, the Slovak Supreme court had confirmed earlier findings from the UNECE Aarhus Convention Compliance Committee (ACCC) of non-compliance with regards to the permit procedures for the completion of the Mochovce NPP, in order for the Slovak authorities to finally start an EIA procedure for this nuclear sector project that would at least fulfill the countries international obligations (4).

In 2019, the Slovak parliament approved a new FOIA amendment, which provided for yet more reasons to classify information/documents falling under the Slovak Atomic Act as confidential, which directly became subject of further UNECE ACCC findings and requests for Slovakia to correct its FOIA in particular with regards to nuclear sector information/documents (5). This was explicitly reflected in the pre‑election program document of the political party with the acronym OĽaNO which, quite as a surprise, in the end won the Parliamentary elections in Slovakia held on 29 February 2020 (6). CEPTA, a member organisation of Nuclear Transparency Watch (NTW), will keep on following the developments in this regards and update the NTW members.

See the 2 pages factsheet on the topic: 20200512__Mihok__Slovakia_transparency_update-_ NTW_factsheet

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