Explanatory Memorandum to COM(2005)673 - Supervision and control of shipments of radioactive waste and nuclear spent fuel

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dossier COM(2005)673 - Supervision and control of shipments of radioactive waste and nuclear spent fuel.
source COM(2005)673 EN
date 21-12-2005
1. JUSTIFICATION OF THE PROPOSAL

The revision process of Directive 92/3/Euratom of 3 February 1992 on the supervision and control of shipments of radioactive waste between Member States and into and out of the Community was initiated in 2001 in the context of the fifth phase of the SLIM initiative (Simpler Legislation for Internal Market; SLIM V), with a view to making Directive 92/3 Euratom more user-friendly and transparent. See the Report from the Commission on the Outcome of the 5th Phase of SLIM i.

Modifications in the provisions of Directive 92/3 are justified by four different reasons:

- Consistency with latest Euratom Directives : Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionising radiation i, and Council Directive 2003/122/Euratom of 22 December 2003 on the control of high-activity sealed radioactive sources and orphan sources, in particular the wording of the provisions on reshipment of radioactive sealed sources.

- Consistency with international Conventions , in particular in view of the ongoing accession of the European Atomic Energy Community (Euratom) to the IAEA Joint Convention on the Safety of Spent fuel Management and on the Safety of Radioactive Waste Management (thereinafter “Joint Convention”).

- Clarifying the procedure in practice and improving the Directive structure .

- Extension of the scope to spent fuel. Under Directive 92/3, spent fuel for which no use is foreseen is considered as “radioactive waste” and shipments of such materials are subject to the uniform control procedure laid down in the Directive. Shipments of spent fuel for reprocessing are on the contrary not subject to such a procedure. This leads to the inconsistency that the same material is or is not subject to this procedure depending on its intended use.

The SLIM report recognised “that the example of the Joint Convention on Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management would suggest that the scope of the Directive be extended to cover also spent nuclear fuel for reprocessing”. No direct recommendation was however made, because the SLIM team considered this as “going beyond its mandate in the framework of the SLIM V initiative”.

The Opinion of the European Economic and Social Committee on the Proposal submitted by the Commission endorsed the extension of the scope to shipments of spent fuel for reprocessing (see point 5 below).

In view of the foregoing circumstances, and because from a radiological point of view there would be no reason not to apply the procedure laid down in Directive 92/3 to all shipments of spent fuel, it is deemed appropriate to extend the scope of the Directive as explained. The administrative burden for those shipments of spent fuel which would concern only Member States who have concluded an agreement that this will be for the purpose of reprocessing can be kept very low.

2.

2. SUBSIDIARITY AND PROPORTIONALITY


While the Community is responsible for establishing uniform rules in the radiation protection field in order to achieve a high level of health protection of workers and the general public, it falls on the Member States to transpose into their national legislation such rules and to implement them.

When considering the existing requirements concerning shipments between Member States, there is no ambiguity as to the roles of the Community and the Member States under the existing system of prior authorisation and control of shipments of radioactive waste laid down by Directive 92/3.

This proposal for a Directive does not fundamentally modify this existing prior authorisation system. The task of controlling shipments through a specific mechanism remains within the competence of Member States.

3.

3. COSTS OF IMPLEMENTING THE PROPOSAL FOR MEMBER STATES AND THE COMMUNITY


4.

3.1. Costs to the Member States


The proposed amendments do not modify the existing scheme under Directive 92/3. The fact of extending the procedure also to shipments of spent fuel intended for reprocessing should not imply considerable extra costs to the Member States, the costs being easily absorbed by the administrative infrastructures already in place.

The procedure being now clarified in some key aspects (certainty concerning spent fuel, generalisation of automatic consent, use of languages, user-friendly structure of the Directive provisions, etc.), the new Directive will allow delays to be avoided in carrying out shipments, thus reducing their administrative cost.

5.

3.2. Costs to operators


The extension of the authorisation procedure also to shipments of spent fuel intended for reprocessing should not imply additional costs to nuclear operators, as shipments of this kind are already covered in the Member States by some kind of administrative procedure on the basis of Directive 96/29.

The procedure being now clarified in some key aspects (certainty concerning spent fuel, generalisation of automatic consent, use of languages, user friendly structure of the Directive provisions, etc), the new Directive will allow delays to be avoided in carrying out shipments, which is beneficial to the operators concerned.

6.

3.3. Costs to the Community


There will be no impact on the Community budget.

The various obligations upon the Commission arising from this Directive (concerning reporting, establishment and updating of standard document, publication of lists of authorities) already exist on the basis of Directive 92/3.

Similarly, the Advisory Committee to be set up under Article 16 corresponds to the Committee which already exists under Article 19 of Directive 92/3.

Contents

1.

CONSULTATIONS


7.

WITH INTERESTED PARTIES


The representatives of the competent authorities in charge of the implementation of Directive 92/3 Euratom (Committee provided for in Article 19 of Directive 92/3) were consulted on the draft revision of the Directive at a meeting held on 18 October 2002.

The Group of Scientific Experts provided for in Article 31 Euratom was consulted on the revision of Directive 92/3 during its meeting on December 2002 and gave its support to it.

During the first semester of 2005, the Commission also received informal feed-back on the draft proposal from the national authorities and from the industry.

8.

5. CONSULTATION OF THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE (EESC)


The Commission submitted on 12th November 2004 to the EESC, for opinion, the Proposal for a Council Directive on the supervision and control of shipments of radioactive waste and spent fuel, adopted on the same day (COM(2004) 716 final).

The EESC delivered its opinion on 8th June 2005. It supported the revision of the Directive undertaken by the Commission and welcomed the generalisation of the automatic consent procedure.

It however drew the Commission’s attention to the need to redefine the rules on transit, in order to ensure their compatibility with the principles of the nuclear common market, in particular as far as shipments of spent fuel for reprocessing are concerned.

It further asked for clarifying the rules on imports and exports and to redefine more precisely the grounds entitling a state of transit or destination to refuse consent.

9.

6. PROVISIONS OF THE PROPOSAL


10.

6.1. Subject matter and scope (Article 1)


Article 1 i : For reasons of legislative technique, the purpose of the Directive is now clearly stated. This Directive supplements Directive 96/29/Euratom, under which Member States have set out a system of reporting and authorisation of practices involving a risk from ionising radiation, and its purpose is thus consistent with those in Directive 96/29: health protection.

Article 1 i : The provision in Article 1 i of Directive 92/3 has been reworded so that:

It takes into account the new conditions set in Articles 3.2 (a) and (b) of Directive 96/29/Euratom (quantities and concentration of radionuclides). A dynamic reference to this Directive is made.

It is clarified so as to cover shipments involving the same country of origin and of destination, when such a shipment concerns a different country of transit.

Shipments of spent fuel not considered as waste are now also subject to the procedures laid down in the Directive.

Article 1 i: This corresponds to the contents of Article 13 of Directive 92/3, concerning disused sources but its wording has been simplified and adapted to the provisions of Directive 2003/122. This exemption now covers all shipments of disused sources to a supplier, manufacturer or recognised installation (as described in Article 3(2)(a) of Directive 2003/122, as a part of the safe management of the source when it is no longer used), and not just the cases where the source is “returned by its user to the supplier of the source in another country”, as under Directive 92/3.

The right place of this provision seems to be Article 1, as it delimits the scope of the Directive.

11.

6.2. Reshipments related to processing and reprocessing operations (Article 2)


The provision in Article 14 of Directive 92/3 has now been moved to Article 2. The term “waste” has been replaced by “radioactive waste”. The words “exported” have been replaced by “shipped”, in order to also cover those reshipments from a Member State to another Member State. It is considered that, similarly to the case of the reshipping after reprocessing, the right to return the radioactive waste after treatment also covers “other products of the processing operation”. The right to return to its country of origin radioactive waste and other products of processing and reprocessing operations does not exonerate from the authorisation procedure.

12.

6.3. Definitions (Article 3)


Definitions have been modified as follows:

The definitions of “Radioactive waste”, “Spent fuel”, “Disposal” and “Storage” have been brought into line with the definitions in the Joint Convention, with some adaptations:

1. “radioactive waste”: the reference to “Contracting Party” has been replaced by “country of origin and destination” in the first part of the definition; the second part has been adapted so that to cover e.g. situations where scrap metal being shipped is detected as being “radioactive scrap metal” (at the country of origin, transit or destination) and has therefore to be consider by the country concerned as radioactive waste, independently of the “use foreseen by the countries of origin and destination”

This is in line with the statement made by the Commission when Directive 2003/122 was adopted: “The Commission confirms that the need to regulate the question of export and import of undeclared radioactive contaminated metallic material which may contain orphan sources may be addressed in the framework of discussions on an amendment to Council Directive 92/3/EURATOM on the supervision and control of shipments of radioactive waste between Member States and into and out of the Community.”

2. “disposal ”: the words “appropriate facility” have been replaced by “authorised facility”.

“Shipment” now covers both shipments of radioactive waste and shipments of spent fuel. This allows a single term to be used to refer to shipments of all these materials and makes it unnecessary to repeat the whole expression. The expression “including transport, loading and unloading for disposal or storage” has been deleted because already implicit in the definition.

“Intra-community shipments” and “extra-community shipments” are defined, following the new structure of the Directive.

More preciseness is given to the following definitions : “Holder” , where the word “intends” has been replaced by “plans” (see comments on Article 4); new definitions are given for “Country of origin” and “Country of destination”, which replace the existing “place of origin and place of destination”, and for “Country of transit” .

“Territory” is defined in line with the EESC’s proposal.

The definition of “ Sealed source” has been taken from Directive 96/29; those of “disused source” and “recognised installation” correspond to Directive 2003/122.

13.

6.4. Application for shipment authorisation (Article 4)


In Article 4 i the expression “intends to carry out a shipment” is replaced by a less ambiguous wording (“has planned to carry out a shipment”). This new expression will avoid in practice difficulties deriving from considerations as for the “intentional” character of a shipment (see point 3.5 SLIM Report), while ensuring the timeliness of applications (so that they are not lodged too far in advance).

Article 4 i corresponds to Article 5 i of Directive 92/3.

14.

6.5. Transmission of the application to the competent authorities (Article 5)


Article 5 i corresponds to Article 4 i, paragraph 1, second sentence of Directive 92/3.

15.

6.6. Consent and refusal (Article 6)


Terminology has been harmonised, and the word consent is used for Member States of transit and destination, so that it can be distinguished from “authorisation”, to be granted by the Member State of origin.

Contrary to the provision in Article 6 i of Directive 92/3, the automatic consent procedure is no longer optional, but shall apply to any shipment. A country of transit or of destination that does not give any reply as regards an intended shipment is deemed to have approved such shipment. Now, acknowledgement of receipt is requested within one month, and the period for notifying acceptance/refusal is extended to 4 months (3 months reply + 1 month extension on request). Both the acknowledgement of receipt and the generalisation of the automatic consent procedure were welcomed by the EESC.

For sake of clarity, and as recommended by the EESC, the reasons that justify a refusal to give consent or for conditions attached to the consent are clearly defined and different for the Member State of destination and for Member States of transit, so that the latter can only invoke the relevant national, Community or international legislation applicable to transport of radioactive material. Lack of a common policy in the nuclear field, this differentiating is necessary in order to safeguard the rights of those countries which have opted for reprocessing. This is further consistent with the recommendation made by the EESC in connection with the possible obstacles to the nuclear common market.

Article 6 i corresponds to the provision of Article 16 of Directive 92/3, its wording having been adapted to the structure of the present proposal. It is now clear that the consent procedure also applies to reshipments in cases where the initial shipment fails for the reasons detailed in Article 9 (see point 3.12 of the SLIM Report).

16.

6.7. Authorisation of shipments (Article 7)


It is logical to address the stage of authorisation in a separate Article and after the provisions on acceptance.

Article 7 i reflects the idea that was already implicit in Article 5 i of Directive 92/3.

Article 7 i corresponds to Article 5 i of Directive 92/3. The 3 year-validity-period is a maximum limit. It is for the authorising authorities to determine, on a case by case basis, the appropriate time validity of the authorisation.

17.

6.8. Acknowledgement of receipt of the shipment (Article 8)


This provision corresponds to Article 9 of Directive 92/3.

18.

6.9. Shipment failure (Article 9)


This provision corresponds to Article 15 of Directive 92/3, but following points have been clarified: (a) the right of the Member State of origin, transit or destination to abort a shipment, in the conditions laid down in the same provision and (b) the obligation of the Member State of origin in connection with take-back responsibility of the holder. In line with Article 27 of the Joint Convention, the possibility to make an alternative safe arrangement is given, for such cases where the taking-back is not justified from the radiological point of view.

The liability of the holder for any additional cost – repackaging, transport e.g. – is justified, because the holder is the primary responsible for the respect of the conditions for which the shipment was authorised and consented.

19.

6.10. Special rules for imports into the Community (Article 10)


Article 10 of Directive 92/3 has been developed and identifies the different steps of the procedure.

20.

6.11. Special rules for transit through the Community (Article 11)


It elaborates on Article 10 i of Directive 92/3 and identifies the different steps of the procedure.

21.

6.12. Special rules for exports out of the Community (Article 12)


It elaborates on Article 12 of Directive 92/3 and identifies the different steps of the procedure. The consent of the State of destination is required, as resulting from Article 27 of the Joint Convention.

22.

6.13. Prohibited exports (Article 13)


It corresponds to Article 11 of Directive 92/3. It has been amended to take into account that the Fourth Lomé ACP-EEC Convention has now been replaced by the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States (ACP) of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 i, which entered into force on 1 April 2003.

23.

6.14. Use of a standard document (Article 14)


Article 14 i has been adapted from Article 20 of Directive 92/3. It lays down a general obligation for the use of the standard document, so that individual references to this in the relevant provisions of the Directives are now redundant. The obligation to establish the new standard document by the date of transposition is laid down for the sake of clarity. Article 14 i clarifies the use of languages, in order to avoid uncertainties. The need for clear rules on the use of languages is especially relevant in a Community of 25 Member States.

This question will subsequently be addressed when establishing the new standard document using the advisory committee procedure laid down in Article 18, possibly by including the different items/headings in all EU languages, or by allowing for the use of bilingual or multilingual official versions combining the language of the country of origin with one or more other EU languages, according to the needs.

24.

6.15. Competent authorities (Article 15)


It corresponds to Article 17 of Directive 92/3, but the reference to the automatic consent procedure has been deleted as a consequence of Article 6 i.

25.

6.16. Cooperation (Article 16)


Providing for a solution for small producers of radioactive waste is the necessary corollary of recognising the right to prohibit the import of radioactive waste for final disposal.

Further to the considerations in Article 14, a specific duty of co-operation needs to be enounced in order to avoid situations where the authorisation / consent procedure might be misused for dilatory purposes and constitute an unjustified obstacle e.g. to the free movement of spent fuel within the Community. The appropriate Community control mechanisms apply, including, as the case might be, the opening of infringement procedures under Article 141 Euratom.

The recommendations meant in Article 16 i are intended to develop a safe system of exchange of information in order to facilitate the respect of the procedure laid down in this Directive, while avoiding delays.

26.

6.17. Regular reports (Article 17)


In view of the experience of Directive 92/3, reports are only expected every three years. A reference is made to the procedure to be followed (this Proposal does not contain any provision similar to Article 20 of Directive 92/3, but integrates such a reference in Articles 3, 12, 13 and 15).

27.

6.18. Advisory committee (Article 18)


It corresponds to Article 19 of Directive 92/3.

28.

6.19. Transposition (Article 19)


When transposing this Directive, Member States should pay special attention to those aspects that are new, and in particular:

Article 1, as far as it defines the extended scope of the Directive, which is now also applicable to shipments of spent fuel meant for reprocessing and shipments from one point to another of the same Member State but transiting through another country; and it makes reference to the quantities and concentration levels laid down in Directive 96/29.

Article 2, extended provision on reshipments for processing and reprocessing purposes.

Article 6, concerning the modified consent procedure.

Article 9, paragraph 1, on shipment failure, and the equivalent provisions in Articles 10, 11 and 12.

Article 12, on exports out of the Community, which now requires the consent of the competent authorities of the country of destination.

Article 13, including a new reference to the Cotonou ACP-EC Agreement.

Article 14, on the use of the standard document, and in particular paragraph 3, on the use of languages.

29.

6.20. Final provisions (Articles 20, 22 and 23)


Standard texts.

30.

6.21. Transitional provisions (Article 21)


For reasons of legal certainty, the special requirements introduced by this Directive will not be applicable where the application for authorisation had been duly submitted before the date of transposition.

For those applications submitted during the transitional period, Member States should, however, refuse to grant authorisation for several shipments where there is no objective reason for regrouping them in a single application and there is a suspicion that the operator is seeking to avoid the application of the relevant provisions of this Directive, and in particular the need to obtain the consent of the third country of destination.