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Radioactive Waste Disposal, an International Legal Perspective

Published online by Cambridge University Press:  21 July 2009

Leigh Hancher
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Abstract

The article deals with the advantages and disadvantages of an international solution for the safe, permanent disposal or long-term storage of high level radioactive waste from a legal perspective. Firstly, some early attempts to create an International Waste Repository (IWR) and their subsequent fate are examined. Next to this, pros and cons of an IWR in the context of recent national and international developments in the management of, and trade in radioactive waste, are considered. Main related question is, whether an international solution to waste disposal is a useful option. Finally, the legal and institutional problems which must be considered if states decide to create an international facility for waste disposal are described. Special attention is given to a model provided for in Chapter V of the Euratom Treaty of 1957.

Type
Leading Articles
Information
Leiden Journal of International Law , Volume 3 , Issue 2 , December 1990 , pp. 143 - 166
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1990

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References

1. This is the three-tier classification used by the International Atomic Energy Agency (IAEA). As will become clear later in this article there is no uniform system of classification of solid wastes. The IAEA did in fact propose such a system some years ago, but this was not adopted. See IAEA, Criteria for Underground Disposal of Solid Radioactive Wastes, IAEA Safety Series No. 60 (1983).

2. See, e.g., the evidence of Greenpeace and Friends of the Earth to the Select Committee on the European Communities, Radioactive Waste Management, House of Lords Paper No. 99, Session 1987–1988, at 141 et seq..

3. See generally NEA, Objectives, Concepts and Strategies for the Management of Radioactive Waste Arising from Nuclear Power Programmes, 1977.

4. IAEA-RNFCC/2 (Regional Nuclear Fuel Cycle Centre Study: Institutional-Legal Framework Aspects) Report regarding Preliminary exploratory phase; July 1976. RNFCC, Summary, VoL 1 and Basic Studies, Vol. 2 IAEA, 1977.

5. Final Report of the Expert Group on International Spent Fuel Management, IAEA - ISFM/EG/26 Rev.l, July 1982.

6. See Pacific Spent Fuel Storage: Hearings Before the Senate Committee on Energy and Resources, 6th Cong. 1./Sess. 2–3 (1979), and International Environmental Reporter 899 (1979).

7. Expert Group on International Plutonium Storage, IAEA-IPS/EG/140 Rev.2, Nov. 1982.

8. Evidence of Mr S. Orlowski, European Commission to the Select Committee on the European Communities, Radioactive Waste Management, House of Lords Paper No. 90, Session 1987–1988.

9. Commission of the EC, Present Situation and Prospects in the Field of Radioactive Waste Management in the European Community, Com (87) 312 final, July 1987, at 17.

10. Waste disposal facilities fall within the definition of ‘investments in the nuclear field’ for the purposes of Ait 40 which obliges the Commission to “periodically publish illustrative programmes indicating […] nuclear energy production targets and all types of investment required for their attainment”.

11. Commission of the EC, Nuclear Industries in the Community, Illustrative Nuclear Programme under Art. 40 of the Euratom Treaty, Com (85)401 final, July 1989, Paras. 67–69.

12. Group of Experts of the NEA Radioactive Waste Management Committee, Intemational Approaches on the Use of Radioactive Waste Disposal Facilities (1987).

13. Id. at 7.

14. See further P. Venet et al., Costs and Ways of Financing the Geological Disposal of Radioactive Waste, paper presented to the 2nd EEC Conference on Radioactive Waste, Luxembourg (1985).

15. Commission of the EC, Present situation and prospects, supra note 9, at 4.

16. NEA Study, supra note 12, at 28–29.

17. Financial Times, June 2, 1989.

18. See further Department of Energy, Monitoring and Control of British Nuclear Fuels plc, Report by the Comptroller and Auditor General, National Audit Office, HMSO (1989).

19. For a review of the various disposal options adopted by the twenty six countries currently using nuclear power for electricity generation, see IAEA Advisory Group Review and Recommendations, Mar. 15,1988.

20. An example of the extensive transportation of nuclear materials under current arrangements is provided by the recent US-Japan co-operation agreement on the peaceful use of nuclear energy. Under this agreement Japan buys low-enriched uranium from the US, which is then burnt in Japanese reactors. The spent fuel is transported to Britain and France for reprocessing, after which it is sent back by air to Japan, with stop overs currently scheduled in Alaska, Washington State or north of the US. These uranium transport flights - on commercial aircraft of the 747 type would operate 2 or 3 times per month. These arrangements have provoked extensive opposition in the USA, Alaska, Canada and from the US NRC, the US Secretary of State for Defence and the Nuclear Control Institute in Washingtoa (OJ. 1988, C 148/21).

21. Written evidence, BNFL, House of Lords Select Committee on the European Communities (1988),supra note 8, at 66.

22. House of Commons, Hansard, May 26, 1986.

23. Letter of July 10, 1979.

24. Art. 8A of the EEC Treaty, as amended by Art. 13 of the Single European Act of 1986.

25. Art. 232(2) EEC provides that “the provisions of this Treaty shall not derogate from those of the Treaty establishing the European Atomic Energy Community”.

26. Commission of the EC, The Internal Energy Market, Com(88) 238 final, May 1988, at 79–82.

27. Art. 197 further defines the terms,‘special fissile materials’;‘uranium enriched in uranium-235 or uranium-233’; ‘source materials’ and ‘ores’.

28. The term ‘good’ is widely defined in the case law on the EEC Treaty, to include any product which has a monetary value and may be the object of commercial transactions, 7/78 R. V. Johnson, ECR 1978,2247.

29. There is in fact a considerable debate over the application of Chapter III of the Euratom Treaty to measures intended to harmonise free movement The European Parliament has taken the view that Art.31 Euratom is not the appropriate legal basis for measures relating to free movement and should be confined to measures directly related to the protection of the general public in connection with the operation of nuclear plant and the handling of nuclear fuel. It has therefore challenged the legal basis on which the Council has enacted a regulation laying down maximum permitted levels of radioactive contamination of foodstuffs (Reg. No. 3954/87, O.J. 1987, L 371/11). The substance of Case 70/88 Parliament v. Council has yet to be decided by the European Court of Justice, although it has now give a decision on the procedural aspects of the case. For a detailed consideration of the legal scope of Chapter m, See Grunwald, J., Tchernobyl et les Commumutts Europé;ennes, Revue du Marché Commun, No. 308,1987, at 396–408.Google Scholar

30. Dir. No. 84/613, OJ. 1984, L 326/6.

31. Id. at 80, Para. 6.

32. See, e.g., Observer, May 29, 1988.

33. OECD Council Resolution on International Cooperation Concerning Transfrontier Movements of Hazardous Waste of June 20, 1985 (Q85) 100).

34. See, Decision-Recommendation of the Council on Exports of Hazardous Wastes from the OECD Area, June S, 1986, Com (86)9 Final and C(86)64 Final.

35. Reprinted in 28 International Legal Materials 649 (1989).

36. IAEA GC(XXXII)/COM.5/63/Rev.l Sept 22, 1988, Resolution of the General Conference on the Dumping of Nuclear Wastes.

37. Supra, note 12, at 19.

38. These include, the Carriage of Dangerous Goods by Rail (RID); the International Air Transport Association Regulations (based on IAEA and ICAO rules) (with the exception of Greece); the International Carriage of Dangerous Goods by Road (ADR) (with the exception of Greece and Ireland); IMO regulations (with the exception of Italy and Luxembourg) and ADNR (internal navigation) with the exception of Denmark, Greece, Ireland, Italy and Luxembourg).

39. European Parliament, Resolution on the transport of radioactive wastes and substances, OJ. 1982 C 40/42.

40. Communication from the Commission to the Council concerning the transport of radioactive materials within the EC, Com (84)233 Final, Apr. 1984.

41. BNFL, evidence to the Select Committee on the European Communities, supra note 8.

42. Technical Exchange and Cooperative Arrangement between the US Atomic Energy Commission and the Federal Ministry for Research and Technology of the FRG in the Field of Management of Radioactive Wastes, 1975 BGB1 No. 15, at 268; Erganzung, 1980 BGB1 No. 47, at 1418; 1985 BGB1 No. 26, at 870.

43. Dir. No. 85/337/EEC, OJ. 1985, L 175/40.

44. The Directive does not, however, apply to projects serving national defence purposes, nor to projects adopted by a specific act of national legislation, nor to projects which the Member States exempt wholly or in part from its provisions.

45. 197/87 Saarland v. Minister of Industry, 1 C.M.L.R. 529 (1989).

46. It is of course an open question whether a HLW disposal site would qualify as a ‘dangerous experiment’ within the meaning of Art 34 Euratom, which provides that “the assent of the Commission shall be required where the effects of such experiments are liable to affect the territories of other Member States”.

47. Supra note 12, at 26.

48. The IAEA Safeguards Implementation Report states that the Agency was unable to attain its selfproclaimed safeguard goals in 1986 for 5 countries.

49. Quotation taken from Art. 11 of the LAEA-Euratom Agreement (78/164/Euratom, OJ. 1978, L 51).This terminology is repeated in Art 35 of the Euratom Council Regulation No. 3227/76 on the application of Euratom safeguards (OJ. 1976, L 363/1).

50. Reg. No. 3227/76/Euratom, OJ. 1976, L 363/1, Annex 11(6).

51. Definition 107(v) of INFCIRC/153, Feb. 1983 -‘Blue Book’, “nuclear material […] which is deemed to be unrecoverable for the time being but which is stored”.

52. Sweden-German Correspondence, supplied by SKB; USA-Sweden Agreement, SO 1984:66.

53. See note 50, and‘Blue Book’, supra note 51, Definition 107(iv).

54. Eur. Part. Doc. A-2–120/88B, Report of the Committee of Inquiry on the Handling and Transport of Nuclear Material, June 27, 1988.

55. See the Statement of Commissioner Mosar, Swapping Nuclear Material, 1988 Energy in Europe 76.

56. See, e.g., Art. 36(e) of Reg. No. 3227/76/Euratom.

57. For a detailed discussion of these two Conventions, See the various contributions in P.D. Cameron, L. Hancher & W. Kuhne, (eds.) Nuclear Law After Chernobyl (1988).

58. This is provided for in Art. 5(d) of the Paris Convention and Art 3(d) of the Vienna Convention.

59. This is a mechanism used by the UK and French governments when public sector firms have been privatised. It is designed primarily to ensure that a certain percentage of the relevant company's assets remain in the ownership of nationals.

60. Switzerland, for example, participates in the JET programme. Council Decision of Aug. 3, 1979, OJ. L 213/9.

61. Art 49; Ait 161 provides that a decision shall be binding in its entirety on those to whom it is addressed.

62. Polach, Euratom, Its Background, Issues and Economic Implications, 1964.

63. Council Decision of May 30, 1978, OJ. 1978, L 151/10.

64. See, e.g., the discussion of what constituted an ‘act of the undertaking’ for the purposes of establishing the jurisdiction of the national court in Joined Cases 271/83, IS, 36, 113, 158 and 203/84 and 13/85 Ainsworth v. Commission and Council, Judgment of Jan. 15, 1987 (not yet reported).