Exporting Nuclear Waste Material (Nov 2022)

Maroof Mittha & Simon Stuttaford

Exporting Nuclear Waste Material for treatment and storage; position and practices under the international legal framework

Can a sovereign state enter a contract with a third party to transfer custody of the radioactive waste for the geological repository?

International framework

The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (the Joint Convention) of 1997 is an international legally binding treaty on spent fuel and radioactive waste management. The safety of nuclear power is the subject of the Convention on Nuclear Safety (CNS) of 1994. It represents a commitment by contracting parties to achieve and maintain a high level of safety in nuclear installations (which does not include disposal facilities). The Convention on the Physical Protection of Nuclear Material 1987 (CPPNM), amended in 2005, is another international treaty requiring the physical protection and safety of nuclear material. It applies to nuclear material used for peaceful purposes, storage, and transport; and to nuclear facilities used for peaceful purposes.

The Joint Convention does not bar a sovereign state (a Contracting Party to the Joint Convention) from entering a contract with a third party to transfer radioactive waste for disposal in the geological repository. Neither does it directly address and provide whether a sovereign state can enter a contract with a third party to transfer custody of the radioactive waste for the geological repository.

The Joint Convention, however, in its Preamble, besides mentioning the right of a state to ban the import of foreign spent fuel and radioactive waste, also envisages agreements between the Contracting Parties to use facilities in one of them for the benefit of the other Parties.[1] The underlying objective behindthis Preamble clause is for the Contracting Parties to foster safe andefficient management of spent fuel and radioactive waste.

A careful reading of the Joint Convention provisions, the EU’s legal perspective, and past practices between states will be necessary to understand the above proposition.

Contracting party obligation

The Joint Convention lays down the obligations of each contracting party to establish and implement procedures for siting, design and construction, assessment of safety, and operation of the facilities for radioactive waste management.

Radioactive waste and its management

The Joint Convention defines ‘radioactive waste’ as radioactive material for which no further use is foreseen by a contracting party (state), and which is controlled as radioactive waste by a regulatory body under the legislative and regulatory framework of that contracting party.[2]It also defines ‘radioactive waste management’ as all activities, including decommissioning activities, that relate to the handling, pre-treatment, treatment, conditioning, storage,[3]or disposal of radioactive waste[4],excluding off-site transportation.[5]

The Joint Convention further includes allfacilities as nuclear facilities where radioactive materials are stored ordisposed of on such a scale that consideration of safety is required.[6]  

Contracting party’s obligations for the radioactive waste management facility

The Contracting Party to the Joint convention is obligated to take the appropriate steps to ensure that at all stages of radioactive waste management, individuals, society, and the environment are adequately protected against radiological and other hazards.

The Joint Convention also prescribes the following ‘appropriate steps’ for the contracting party to meet the general safety requirements.[7]

(i)       ensure that criticality and removal of residual heat generated during radioactive waste management are adequately addressed;

(ii)       ensure that the generation of radioactive waste is kept to the minimum practicable;

(iii)       take into account interdependencies among the different steps in radioactive waste management;

(iv)       provide for effective protection of individuals, society and the environment, by applying at the national level suitable protective methods as approved by the regulatory body, in the framework of its national legislation which has due regard to internationally endorsed criteria and standards;

(v)       take into account the biological, chemical and other hazards that may be associated with radioactive waste management;(vi)       strive to avoid actions that impose reasonably predictable impacts on future generations greater than those permitted for the current generation;

(vii)       aim to avoid imposing undue burdens on future generations.

These appropriate steps can also serve as guiding principles for radioactive waste management arrangements not covered within the scope of the Joint Convention.

Storage or disposal as a licensed activity

The operation of a storage or disposal facility is recognised as a licensed[8]activity for radioactive waste management under the Joint Convention.

The Contracting Parties, under the provisions of the Joint Convention, must provide the legislative and regulatory frame works to govern the safety of spent fuel and radioactive waste management. The Joint Convention asks the Contracting Parties to take governance measures.  

This legislative and regulatory framework shall provide for:

(i)       the establishment of applicable national safety requirements and regulations for radiation safety;

(ii)       a system of licensing of spent fuel and radioactive waste management activities;

(iii)       a system of prohibition of the operation of a spent fuel or radioactive waste management facility without a licence;

(iv)       a system of appropriate institutional control, regulatory inspection and documentation and reporting;

(v)       the enforcement of applicable regulations and of the terms of the licences;

(vi)       a clear allocation of responsibilities of the bodies involved in the different steps of spent fuel and of radioactive waste management

The Joint Convention does not prescribe any criteria for granting licences for radioactive waste management activities. However, it directs the Contracting Parties to devise a legislative and regulatory framework for licensing the spent fuel and radioactive waste management activities (storage and disposal of radioactive waste). The obligation requires that the national legislative framework provides a licensing system for radioactive waste management activities.

The national legal framework may also include eligibility criteria for a licence holder to provide a licensing system for radioactive waste management activity. The eligibility criteria may provide a third party or a sovereign state to be eligible to apply for a licence for the storage and disposal of radioactive waste management. However, this licence shall not absolve the Contracting Party of its supervisory and oversight role in the Joint Convention.

When the licence holder is issued a licence by a Contracting Party, the Contracting Party’s role shifts to the over sight and supervision process, which ensures that the licence holder complies with the licence and the activity is performed as had been stated in the licensing process.

The Joint Convention also states that the licence holder shall be primarily responsible for the safety of spent fuel or radioactive waste management. The Contracting Party shall take appropriate steps to ensure that such responsibility is met by the licence holder.

Transboundary movement of radioactive waste and spent fuel

The Joint Convention also addresses the transboundary movement of radioactive waste and spent fuel. It states that such transboundary movement must be consistent with the international binding instruments already entered by the contracting parties. Additionally, the transboundary movement of radioactive waste is subject to the safety obligations of radioactive waste and spent fuel.

The Joint Convention provides for the regulatory supervision, consent, and control of the states of origin, transit, and destination for transboundary movement to and from the Contracting Parties. It expressly prohibits the shipment of spent fuel or radioactive waste to Antarctica.

However, nothing in the Joint Convention shall affect the following:

(i)       the exercise, by ships and aircraft of all States, of maritime, river and air navigation rights and freedoms, as provided for in international law;

(ii)       rights of a Contracting Party to which radioactive waste is exported for processing to return, or provide for there turn of, the radioactive waste and other products after treatment to the State of origin;

(iii)       the right of a Contracting Party to export its spent fuel for reprocessing;

(iv)       rights of a Contracting Party to which spent fuel is exported for reprocessing to return, or provide for the return of, radioactive waste and other products resulting from reprocessing operations to the State of origin.

The Joint Convention, in the above mentioned provisions, refers to and protects the in-force bilateral or multilateral arrangement for the transboundary movement (export, return) of radioactive waste and spent fuel for processing and reprocessing.

Historic arrangements for radioactive waste management

In 1979 Spector et al. also reported that West Germany, France, Canada, and the United States had active export programs with such nations as India, Pakistan, Brazil, Argentina, the Philippines, Korea, Taiwan, and Iran.[9] However, the fuel supply countries led by the US changed their stance requiring the customer countries to repatriate the spent fuel. The authors also argued that the urge to repatriate the spent fuel emanated from concerns about security and non-proliferation.

The IAEA, in a 2004 report, stated that historically radioactive wastes had been transferred from one country to another.[10] It further described that when there-processing of foreign fuels began in France, the UK and the Russian Federation, there was no thought of returning wastes despite it being obvious that repackaging radioactive wastes and transporting these back over large distances was a less good environmental solution than co-disposal with host country wastes. The position changed considerably after the intensive public debate on nuclear issues. Re-processor countries like the UK and France introduced new contracting conditions requiring the customer nations to agree to the return of all wastes. The table below from 2004 IAEA Report also shows some past and ongoing arrangements.

Transfer of radioactive materials between countries[11]

The examples above varied regarding whether any return of waste (low-level or spent fuel)back to the originating state was involved

La Hague, France, is one nuclear fuel re-processing facility that has operated since 1966. Reuters reported in 2016 that the plant had re-processed more than 32,000 tonnes of spent nuclear fuel, of which nearly 70% was for EDF, 17% for German utilities, (9) nine percent for Japanese utilities, and the rest for Swiss, Belgian, Dutch and Italian clients.[12]

Orano (formerly AREVA) states that after there cycling process has been completed, the waste from French reactors is stored at La Hague site pending transfer to the final disposal facility to be built under the Cigéo Project. The waste coming from abroad is returned to the country of origin, as required by French law.[13]

Fuel leasing

The concept of fuel leasing has also been applied by Russia to repatriate radioactive waste and spent fuel for disposal.

In this scenario, the uranium producer and/or the fuel manufacturer do not transfer the title of the fuel when it is delivered to the user, but instead, the fuel is leased to be returned when unloaded from the reactor.

Multinational repository concept

The idea of a multinational repository for the disposal of spent fuel and radioactive waste has been discussed since 1970.This is primarily aimed at providing more efficient radioactive waste disposal. Arius Association’s (a think tank advocating multinational repository) comments suggested several scenarios that have been advanced for shared disposal solutions, the most credible of which are:

1.  a group of countries works together to develop a shared disposal facility in one of them, with the possibility that other waste management facilities (stores, fabrication plants etc.) are also shared between the countries;

2.  a country with a major nuclear power programme develops its own national disposal facility and subsequently offers space to other users on a commercial basis;

3.  a country with a stable political base, well-established scientific, technical and security credentials and excellent geological siting possibilities develops a disposal facility and offers it on a commercial basis to other countries.[14]

McCombie et al. reported that several EU countries are exploring the possibility of sharing a geological repository for higher activity wastes on a regional basis, in addition to pursuing their national disposal programmes.[15]

EU perspective

In 2011, the European Council issued a directive on the responsible and safe management of spent fuel and radioactive waste.[16] The Directive in Clause 3 in Article 4on General Principles states that

“Radioactive waste shall be disposed of in the Member State in which it was generated, unless at the time of shipment an agreement, taking into account the criteria established by the Commission in accordance with Article 16(2) of Directive 2006/117/Euratom, has entered into force between the Member State concerned and another Member State or a third country to use a disposal facility in one of them.”

The above clause lays down the principle that the radioactive waste shall be disposed of in the state which has been generating it. However, it also provides an exception that if a (commercial)agreement exists between the waste-generating state and the state allowing its facility for disposal (disposal state), the radioactive waste can be exported to that ‘disposal’ state. There are several historical examples where this type of arrangement has been put in place between different states.

These provisions also pave the way for multilateral agreements to dispose of radioactive waste in a multinational repository.

Conclusion

1.    The provisions within the Joint Convention do not bar or prohibit the Convention’s Contracting Parties from entering into a contractual arrangement with a third party for radioactive waste management for a geological repository. However, the Joint Convention, in its Preamble, indicates the possibility of agreements between the parties and the use of storage facilities in one state for the benefit of another state.

2.    The Joint Convention recognises storage and disposal as licensable activities besides identifying them as nuclear facilities.

3.    The Joint Convention directs the Contracting Party (national jurisdiction) to devise licensing frameworks for radioactive waste management facilities (storage and disposal facilities).

4.    The national legal and regulatory framework can set out any criteria for eligibility to apply for a licence to operate radioactive disposal and storage facility in line with the safety requirements and principles enunciated by the Joint Convention.

5.    The transboundary movement of radioactive waste is permitted subject to the regulatory framework(in line with safety requirements provided by the Joint Convention) of the state of origin, transit, and destination in the transboundary movement.

6.    Radioactive waste has been exported to other countries for disposal in the past.  Regional cooperation for a multinational repository for disposal facilities has long been desired. Different options will determine the custody position, including permanent disposal leading to a transfer of title to the host country, but a shared title being a potential option if there is any scope for retrievability.

7.    The European Council’s directive also permits agreements between states to transfer radioactive waste for disposal in a state other than the generating state.

In view of the above discussion, a contractual arrangement, subject to local law requirements, with a third party for transfer including transhipment, treatment, and repatriation of radio active waste (including title) aligns with the Joint Convention’s underlying objectives of cooperation agreements for safe and efficient radioactive waste management in disposal facilities, past international practices, and current thinking in the EU.

Additionally, there is no prescribed time limit on the period for repatriation of re-processed fuel and nuclear waste under these conventions and treaties; therefore, the spent fuel and nuclear waste may be transferred, treated, and stored for the time agreed between the parties in line with their relevant national legal and regulatory frameworks.


[1] Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, Preamble(xi)
[2] Ibid, Art 2(h)
[3] Ibid, Art 2(t) defines storage as: ‘"storage" means the holding of spent fuel or of radioactive waste in a facility that provides for its containment, with the intention of retrieval’
[4] Ibid, Art 2(d) defines disposal as: "disposal" means the emplacement of spent fuel or radioactive waste in an appropriate facility without the intention of retrieval
[5] Ibid, Art 2(i)
[6] Ibid, Art 2(f)
[7] Ibid, Art 11
[8] Ibid, Art 2(e) defines licence as: "licence" means any authorization, permission or certification granted by a regulatory body to carry out any activity related to the management of spent fuel or radioactive waste.
[9] Spector, Leonard S., and Geoffrey B.Shields, ‘Nuclear Waste Disposal: An International Legal Perspective’ (1979)Nw. J. Int'l L. & Bus. 1 569
[10] International Atomic Energy Agency, ‘Developing multinational radioactive waste repositories: Infrastructural framework and scenarios of cooperation’ (IAEA 2004), 6
[11] The table has been reproduced from IAEA2004 report referred above.
[12] Reuters, ‘Crisis for Areva's La Hague plant as clients shun nuclear’ < https://www.reuters.com/article/us-france-areva-la-hague-idUSKBN0NR0CY20150506> last accessed on 25 October 2022
[13] ORANO,‘Orano la Hague’, < https://www.orano.group/country/china/en/our-stories/orano-la-hague> last accessed 25 October 2022
[14] Arius Association, ‘Management, Storage and Disposal of Nuclear and Radioactive Waste’ < http://www.arius-world.org/pdf_2013_16/Arius%20submission%20to%20SA-RC.pdf> last accessed on 25 October 2022
[15] McCombie C., Chapman N.A, Regional Cooperation on Spent Fuel Management Status and Prospects in Europe, Arab Regions and Asia, IAEA Spent Fuel Conference (2015).
[16] European Council, ‘Council Directive2011/70/Euratom of 19 July 2011 establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste’ OJ L 199, 2.8.2011, p.48–56
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