European Union: EU Council Adopts Revised Nuclear Safety Directive

Last Updated: August 28 2014
Article by George Borovas and Helen Cook

On 14 August 2014, the European Union's ("EU") new nuclear safety directive, Council Directive 2014/87/EURATOM ("2014 Directive"),1 will come into force as an EU-wide legally binding instrument.2 The 2014 Directive amends the Council Directive 2009/71/EURATOM ("2009 Directive")3 by seeking to further bolster the framework for the safety of nuclear installations in the EU.

Here we explain the background to the 2014 Directive, as well as summarise some of the main amendments to the 2009 Directive and potential impacts for industry.

Background to the 2014 Directive

The nuclear accident at the Fukushima Daiichi nuclear power plant in March 2011 was the catalyst for the revision of the 2009 Directive. This event refocused the world's attention on the safety of nuclear installations and the potential cross-border impact of a nuclear accident.4

The immediate response of the EU's Council of Ministers was to call for a safety review of all 1325 operating EU nuclear power plants on the basis of a "comprehensive and transparent risk and safety assessment" (a review which became known as "stress tests") to be conducted in cooperation with the European Nuclear Safety Regulators Group.6 Stress tests were commenced in 2011 by means of self-assessment by licence holders (the nuclear power plant owners and operators) and the preparation of reports by national regulators on the status of the plants, while an extensive EU-wide peer review process was carried out in early 2012.7

In addition to the stress tests, the EU's Council of Ministers charged the European Commission with the task to "review the existing legal and regulatory framework for the safety of nuclear installations" and "propose . . . any improvements that may be necessary."8 The European Parliament also resolved for "an urgent revision of the [2009] Directive with a view to its strengthening, namely by taking into account the results of the stress tests implemented in the aftermath of the Fukushima accident."9 Against this background, in June 2013 the European Commission published its draft proposal for an EU Council Directive to amend the 2009 Directive (the "Draft Proposal").10

On 8 July 2014, following the stress tests and legislative response, as well as a public consultation on the Draft Proposal, the EU Council of Ministers adopted the 2014 Directive. According to Article 2 of the 2014 Directive, in order to comply with its terms Member States have until 15 August 2017 to bring into force the necessary laws, regulations and administrative arrangements to give effect to the 2014 Directive.11

Amendments to the 2009 Directive

The 2009 Directive is strengthened to include a set of "shared objectives" aimed at harmonising the EU approach to nuclear safety.12 The overall aim is the implementation and continuous improvement of the highest standards of nuclear safety and its regulation at the EU-level.13 The primary amendments contained in the 2014 Directive are intended to:

  • strengthen the role and effective independence of the national regulatory authorities;14
  • enhance transparency in nuclear safety and emergency preparedness and response (including information and cooperation obligations and involvement of the public);15
  • strengthen existing principles, and introduce new general nuclear safety objectives and requirements, in particular "defence-in-depth," aimed at addressing specific technical issues across the entire lifecycle of nuclear installations (siting, design, construction, commissioning, operation and decommissioning), particularly nuclear power plants;16
  • reinforce monitoring and exchange of experiences by establishing an EU-wide system of topical peer reviews;17
  • enhance accident management and on-site emergency response, and ensure continuous review and adoption of lessons learned; and18
  • establish a mechanism for developing EU-wide harmonised nuclear safety guidelines (through the peer reviews and coordinated national self-assessments) and a strong nuclear safety culture (through effective management systems, appropriate education and training).19

The table set out in Appendix 1 sets out the key provisions of the 2014 Directive compared to the 2009 Directive.

What This Means for Industry

FORATOM, on behalf of the European nuclear industry, welcomed the adoption of the 2014 Directive, stating that "[t]he European nuclear industry supports in particular how it strengthens the role and independence of Europe's national regulators and endorses agreed safety objectives for nuclear power plants, in accordance with the recommendations of the Western European Nuclear Regulators' Association (WENRA)."20 While the 2014 Directive sets out obligations binding on Member States, and many of the amendments are focused on national legislative and regulatory frameworks, including additional obligations on national regulatory authorities, there are a number of amendments that are specifically targeted at licence holders.

To prepare for the introduction of the new provisions of the 2014 Directive, licence holders may:

  • Take particular note of explicit reference to the licence holder's prime responsibility to ensure nuclear safety, which cannot be delegated to contractors or sub-contractors. Licence holders are responsible for all activities of their contractors and sub-contractors and, therefore, licence holders need to ensure that their contracts include provisions that:
  • require compliance with nuclear safety requirements to the same level as required by the licence holder to ensure that the licence holder can comply with terms and conditions of its licence and relevant regulations;
  • stipulate the requirement to have programs relating to quality assurance and nuclear safety culture in place in contractor and sub-contractor organisations;
  • provide for the license holder to review decisions, activities and any sub-contracting to ensure compliance with nuclear safety requirements; and
  • require contractors to pass on to sub-contractors all relevant terms and conditions (in a "back-to-back" fashion) to ensure the licence holder has adequate oversight and control at all times.
  • Reconsider "defence-in-depth" for their installations and work with regulators to ensure that the licence holder's arrangements satisfy any amendments, including with respect to the requirement to regularly assess, verify, and continuously improve defence-in-depth arrangements.
  • Reconsider on-site emergency procedures and arrangements, including severe accident management guidelines or equivalent arrangements, and work with regulators to ensure that the licence holder's arrangements satisfy any amendments. In particular, ensure that on-site emergency procedures are periodically reviewed and regularly updated, including to take account of lessons learned from the Fukushima Daiichi nuclear accident and any other incidents or accidents at nuclear facilities.
  • Review human resource qualifications and competencies to ensure the ability to fulfill obligations with respect to nuclear safety at installations. In particular, pay attention to the human resources of contractors and sub-contractors whose activities affect nuclear safety and ensure these human resources are sufficiently qualified and competent. As noted above, this can be achieved by proper contractual arrangements that give requisite levels of control to licence holders.
  • Review, and if necessary, revise or develop communications policies to ensure that obligations with respect to transparency and dissemination of appropriate information to local authorities, populations and stakeholders in the vicinity of a nuclear installation are properly incorporated into that policy.
  • Review, and if necessary revise or develop, an institutional nuclear safety culture policy within licence holder organisations, ensuring that this policy incorporates all traits of a positive nuclear safety culture.
  • Plan and prepare for the required systematic and regular review (at least every 10 years) of the safety of nuclear installations, to ensure compliance with the current design basis and identify further safety improvements by taking into account aging issues, operational experience, the most recent research results and developments in international standards.

For other entities which are not the primary licence holders, the 2014 Directive contains concepts and standards that warrant attention, particularly for contractors and sub-contracts doing business with licence holders. It may also be prudent for companies that have policies for doing business in the nuclear sector (whether individually or through common initiatives such as the Nuclear Power Plant Exporters Principles of Conduct)21 to consider whether any amendments should be made to these policies to take into account and facilitate compliance with the 2014 Directive. It would be equally prudent for commercial banks and lending institutions to review their lending policies and guidelines against the 2014 Directive to ensure that enhanced nuclear safety requirements are appropriately incorporated.

Ultimately, the ongoing goal of the entire nuclear industry is to strive for, and work together to ensure the adoption and implementation of, the highest standards of nuclear safety – not only in Member States of the EU - but around the world.

Footnotes

1 Council Directive 2014/87/Euratom of 8 July 2014 amending Directive 2009/71/Euratom establishing a Community framework for the nuclear safety of nuclear installations [2014] OJ L 219/42.

2 Draft proposal for a Council Directive amending Directive 2009/71/EURATOM establishing a Community framework for the nuclear safety of nuclear installations COM(2013) 343 final, 13 June 2013, 5.

3 Council Directive 2009/71/Euratom of 25 June 2009 establishing a Community framework for the nuclear safety of nuclear installations [2009] OJ L 172/18.

4 COM (2013) 343 final, above n 2, 7.

5 Ibid, 2.

6 European Council Conclusions EUCO 10/1/11, 11.

7 COM(2013) 343 final, above n 2, 3.

8 Ibid; See also: EUCO 10/1/11, above n 7, 11.

9 Ibid, 3.

10 COM(2013) 343 final, above n 2.

11 OJ L 219/42, above n 1, 51.

12 COM(2013) 343 final, above n 2, 7.

13 Ibid, 8.

14 Ibid, 5; see also OJ L 219/42, above n 1, paragraph (6), 43.

15 COM(2013) 343 final, above n 2, 5; see also: EU Business, 'Amended Nuclear Safety Directive', 9 July 2014.

16 COM(2013) 343 final, above n 2, 5.

17 Ibid.

18 EU Business, 'Amended Nuclear Safety Directive', 9 July 2014.

19 COM(2013) 343 final, above n 2, 5; EU Business, 'Amended Nuclear Safety Directive', 9 July 2014; OJ L 219/42, above n 1, paragraph (18), 44.

20 See: http://www.foratom.org/newsfeeds/273-revised-safety-directive-to-reinforce-national-legislative-and-regulatory-framewor.html , 2 July 2014. FORATOM had previously identified a number of concerns with the Draft Proposal and many of these concerns have been addressed in the 2014 Directive.

21 See: http://nuclearprinciples.org/the-principles/ .

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