Civil society analysis of public information requirements under the revised Nuclear Safety Directive

101.12.2016·00182-11/3240308 © BECKER BÜTTNERHELD
Rechtsanwälte Wirtschaftsprüfer Steuerberater · PartGmbB
1 December 2016, Luxemburg
Civil society analysis of BSS requirements on public
information

About us
Becker Büttner Held has been operating since 1991. At BBH,
lawyers, auditors and tax advisors work hand in hand with the
engineers, consultants and other experts of our BBH
ConsultingAG.We provide advice to more than 3,000 clients
and are the leading law firm for the energy and infrastructure
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Dr Jan Ole Voß, LL.M. int.
Dr Jan OleVoß is specialised in EU andGerman energy
and infrastructure law, international investment law
and competition law.
8 2000-2005 Studies of Law at the Universities of Constance,
Freiburg and Santander (Spain)
8 2006-2007 Master of Laws at Universidad de
Chile/Heidelberg University; 2009 Doctor of Laws at
University of Freiburg
8 2007-2008 Legal consultant, international law firm,
Brussels
8 2010 Legal clerkship, Higher RegionalCourt, Hamburg
8 2010 – 2016 Lawyer at BBH Berlin
8 Since August 2016 BBH Brussels
Rechtsanwalt / Lawyer · LL.M. (Chile/Heidelberg) · Counsel
1000 Brussels · Avenue Marnix 28 · Phone +32 (0)2 204 44 30 · jan.voss@bbh-online.de

Agenda
1. Introduction
2. Public Information Provisions in BSS Directive
3. Implementation of BSS Directive
4. Outlook

Introduction
§ Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with the
new Basic Safety Standards Directive by the 6 February 2018
§ Generally positive from civil society (CS) perspective:
§ The Nuclear Safety Directive (Directive 2009/71/Euratom) in Article 8
establishes legally binding obligations on Member States in relation
to information to the public
§ The updated Directive strengthens requirements for emergency
preparedness and response (compared to former situation under
Directives 89/618/Euratom, 90/641/Euratom, 96/29/Euratom,
97/43/Euratom and 2003/122/Euratom)
§ But: Implementation will be key and abidance by the
requirements will be key

Closer Look at Public Information
Provisions
§ Article 70: Prior information on health protection to the
public likely to be affected in the event of an emergency:
“Member States shall ensure that the members of the public likely to be affected in
the event of an emergency are given information about the health protection
measures applicable to them and about the action they should take in the event of
such an emergency” + “Information shall be communicated (…) without any request
being made”
§ Annex XII - Information to be given:
§ Basic facts about radioactivity;Various types of emergency and their
consequences
§ Emergency measures envisaged to alert, protect and assist in the event of an
emergency
§ Appropriate information on action to be taken by the public in the event of an
emergency

Closer Look at Public Information
Provisions
§ Article 71: Prompt information on protection measures in
case of an emergency to those actually affected “Member
States shall ensure that, when an emergency occurs, the members of the public
actually affected are informed without delay about the facts of the emergency,
the steps to be taken and, as appropriate, the health protection measures
applicable” (immediately? – see Aarhus Convention)
§ Annex XII - Information to be given:
§ On the basis of emergency response plan, the members of the public
shall rapidly and regularly receive:
§ Type of emergency and, where possible, its characteristics
§ Advice on protection (may cover e.g., restrictions on the consumption of food,
rules on hygiene and decontamination, recommendation to stay indoor)
§ Accouncements recommending cooperation with instructions or requests by the
competent authorities

Criticism of Public Information
Provisions
§ Legal perspective: Very basic information and requirements; more
specific language might be uses
- Hence: BSS Directive only sets out minimum standard
- Shall Commission be more ambitious?
§ From CS perspective:
- The provisions must be updated so as to be representative of the actual
current situation
- The provisions must be adapted in order to be better prepared for a large
scale nuclear accident comparable with Fukushima
- There have been many societal and technological changes since the
provisions were originally adopted.These changes must be taken into
account
- Mandatory involvement of CS representatives

Implementation of Provisions
§ Transparency on nuclear safety issues is divided into two
areas of activity: public information and public participation.
§ Member States can handle the question of transparency in
different ways and to differing extents.The most common
practices include:
§ information release through the regulatory authority’s website,
§ press releases,
§ media interaction
§ and annual reports
§ Some countries stated that regulatory decisions are published in an
official journal

State of Implementation – Example
Germany
4 Primary responsibility: Ministry of Environment, Nature
Conservation, Building and Nuclear Safety
4 Recommendation by Commission on Radiological Protection
dated 25 September 2015
§ Comprehensive overhaul of German legislation necessary
4 Ministry currently working on revision of the relevant
German legislation
4 Responsible authority: Bundesamt für Strahlenschutz (BfS)

France
4 France:
§ TheTSN Act of 13th June 2006 on transparency and security in the
nuclear field, constituted a significant innovation in that it defined
transparency and the right to information in the nuclear field
§ ASN (Autorité de sûreté nucléaire) is responsible for the correct
implementation of the requirements of theTSN Act, particularly
those concerning transparency.
- ASN is intensifying its own actions with regard to transparency, through
active communication with the general public, the media, the institutional
public and professionals.
- The areas for progress: putting the information into perspective and
presenting objectives designed to go further than a simple list of the
results obtained. Similarly, the reports could more clearly present the
public’s right of access to information about nuclear activities.

Belgium
4 Belgium:The recommendations of the Belgian Superior
Health Council: a real opportunity to upgrade safety
standards
§ Risk analyses must be expanded to the new findings and experiences
and nuclear licensing procedures must be adapted to them
§ There is a need for specific vulnerability analyses, such as the
population density and the presence of industrial centers close to the
nuclear reactors. Such analyses should also take into account
scenarios of very low probability but high impact.
§ The SHC advises to expand the emergency planning zones for
evacuation to 20 km

Belgium
§ The SHC also recommends to elaborate long term rehabilitation strategies
to rebuild the economic and social structure of the society and the
country.
§ Because a nuclear accident in Belgium or at a nuclear power station at his
borders will have transnational consequences, the SHC recommends the
reinforcement of bilateral and European agreements.
§ The SHC advocates structural and transparent decision making and
communication on nuclear emergency and response planning, instead of
the decision-making by a hand full of nuclear experts and policy makers as
it is the case today.
§ The SHC stresses that it is necessary that the nuclear regulatory bodies are
really independent from the operators of nuclear power plants and of the
political policy makers and that they are fully transparent.The SHC
recommends to evolve to the creation of a European nuclear regulatory
body within the EU-treaty

Criticism of Implementation
throughout the EU
§ Not only “formal” but fully-fledged implementation is key!
§ To ensure this:
- There has to be greater involvement by citizens andCS Organisations in
emergency and post-accident strategies
- CS must be provided with adequate resources by the European
Commission in order to have a positive effect on the implementation of
the provisions
- Communication and notification has to be modernized so as to ensure the
disclosure of information in a timely manner and accessibility to all those
concerned
- There is a need for multi-stakeholder exchanges at EU and national levels
in order to support the practical implementation of EP&R provisions

Outlook
§ Bottomline: Rules of BSS Directive are basic but appropriate
for setting minimum standard; implementation is key
§ Increase of public participation and CS participation will help
to enhance implementation process
§ There is a growing trend of having greater public
involvement and accessibility to information which may be
harmful to society
§ E.g. this can be seen with the recent decisions taken by the European
Court of Justice regarding pesticides:
- C-673/13 P Commission v Stichting Greenpeace Nederland and PAN
Europe
- AndC-442/14 Bayer CropScience and Stichting De Bijenstichting v College
voor de toelating van gewasbeschermingsmiddelen en biociden

Thank you very much
for your attention.
Jan Ole Voss, BBH Brussels
Phone +32 (0)2 204 44 30
Jan.voss@bbh-online.de
www.bbh-online.de

Backup.

ECJ on public involvement (I)
4 The group of NGOs wanted greater access to confidential
industry studies on the authorisation process for pesticides,
in particular “information relating to emissions into the
environment”
4 The Court of Justice heard the two cases which, although
different in terms of the facts, address, in essence, the right
of access to environmental documents.
4 The Court found that the regulation and directive cover not
only information relating to actual emissions, but also
information on foreseeable emissions from that product into
the environment

ECJ on public involvement (II)
4 The result from these cases is that when a person requests
access to environmental documents, the concept of
‘information on emissions into the environment’ covers, inter
alia, information concerning the nature and effects of the
release of a pesticide into air, water or soil, or onto plants
4 The confidentiality of commercial and industrial information
may not be invoked to preclude the disclosure of such
information

Civil society analysis of public information requirements under the revised Nuclear Safety Directive

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Civil society analysis of public information requirements under the revised Nuclear Safety Directive