Rapporteurs:
Josef LEINEN (Germany) and Anders KNAPE (Sweden)

EXPLANATORY MEMORANDUM

I. Introduction

Nuclear technology involving the release of large quantities of energy from the splitting of the atoms of certain elements developed in the 1940s.

It was only in the 1950s that attention turned to harnessing nuclear fission for peaceful purposes, notably the generation of electricity. The first commercial nuclear power stations started operation in the 1950s. There are now 441 commercial nuclear reactors in 32 countries, supplying 17% of the world's electricity. A further 29 commercial power reactors are under construction.

The world now produces more electricity from nuclear power than it did from all sources in 1958. Some seventeen countries derive at least a quarter of their electricity from nuclear power. Consequently, we should be faced with nuclear electricity production for a long time, despite widespread endeavours to curb its development.

The modernisation of ageing reactors is necessary to make this type of energy production viable under improved safety conditions. There is scope for introducing integrated energy production systems (natural gas, solar energy, distance heating, etc) combined with energy savings measures of every possible kind.

In June 1997 the CLRAE, together with the EU Committee of the Regions organised a conference on Nuclear Safety and Local/Regional Democracy in Göteborg, Sweden. The conference was attended by local and regional government representatives and nuclear energy specialists from 18 countries.

Participants recognised the "serious concerns for public health", posed not only by nuclear accidents, but also by nuclear power generation, fuel reprocessing and waste disposal. The only way to reach a sound consensus on these issues is on the basis of three principles: transparency, participation and diversified economic development. Delegates were united in their call for rights to consultation, access to information and accountability from the European nuclear industry to local and regional authorities.

The absence of European Parliamentary control over nuclear affairs within the EU, the ineffectiveness of citizens rights to environmental information in many countries, and the exclusion of local communities from nuclear safety decision making illustrates the lack of accountability and leads inevitably to mistrust between local and regional government, citizens and the nuclear industry.

Transfrontier safety can be managed through bilateral commissions between states, provided that they are coupled with local or regional committees responsible for monitoring compliance with safety measures.

The conference statement sent a clear signal to the nuclear industry and national governments that local and regional authorities are determined to secure legally enforceable rights to information and consultation on the safe management of the industry. It called for the introduction of a genuine European procedure for monitoring the safety of all nuclear installations, which should ensure complete neutrality and full independence from energy producers.

II. Environmental Radiation: sources, public health and protection

It is clear that there are risks to, and legitimate concerns for, public health from environmental ionising radiation. Prioritised as suggested the following demand attention:

- fall out from nuclear accidents;
- discharges of actinides from nuclear waste storage and processing and reprocessing of nuclear fuel;
- radon in the domestic environment;
- renewed atmospheric atomic weapons testing were that to happen.

The current system of protecting the public is related to the protection of those occupationally exposed to radiation. An average dose rate limit for the public of 1 mSv per year or 70mSv over a lifetime from all planned exposures, with maximum annual doses, has operated for several years. However, the public dose limit is for planned exposures only and does not include exposure from accidents, from radon, and includes actinide exposure only on the available theoretical basis.

There is one public health detriment from radiation exposure which has not been mentioned yet; that is the psychosocial detriment. Real health detriment accrues from the very perception that exposure is taking place and that it may have health consequences. In spite of the increase in thyroid cancer after Chernobyl, the psychosocial effect of that accident dominates, as the most important public health effect of the accident to date.

Radiation is seen by the public as a “special” category of environmental hazard, for which current dose limits exclude some of the routes of exposure of greatest public health concern These limits, in turn, are based, in some important instances on highly theoretical estimations of risk and are proposed by an organisation, the International Commission on Radiological Protection (ICRP), whose primary responsibility is to set the framework and limits for occupational exposure.

In contrast to the general public occupationally exposed groups are generally well informed about the risks of exposure to ionising radiation and how it can be objectively assessed and have usually voluntarily accepted any risk to which they might be exposed routinely. Members of the public see risk in a much less clear-cut way. Their approach, which is more intuitive, is often seen as irrational by the producers and promoters of radiation, who refer to resistance to being exposed among the public as “radio-phobia”.

But the “rational” approach, which relies on a tally of the expected health effects from an exposure, is seen, by the public, as addressing only part of the problem; environmental contamination by radiation is seen to be bad of itself. There is, thus, too little ground for a “meeting of minds” here and too little respect for the public’s right to assess, in its own way, the magnitude and type of risk it is prepared to tolerate.

In general, the separation of the consideration of environmental radiation health risks from other environmental health risks, as is now the case, is unsatisfactory. Radiation should not be viewed as a “separate” risk and it is an accident of history that it is dealt with in the way that it is. The logical separation should be between public and occupational health risks, with the public health risks being considered alongside other environmental hazards. This would enable the public’s perception and prioritisation of risk to be incorporated into protection standards in a way that is consistent with the risks from other environmental hazards.

The question of nuclear safety, and hence radiation protection standards, arises at different stages in the use of nuclear energy. The safety standards concern the construction of the power station, the period during which it operates and also the short-, medium- and long-term management of nuclear waste.

It can be noted that radiation protection standards are becoming increasingly strict. The limits of foreseeability and the resulting uncertainty raise the question of the rights of future generations. It would be judicious in future to have a codification of nuclear law which would have the merit among others of submitting the entire nuclear cycle to the general principles of environmental law. Among these principles are the right to health, which implies that every precaution must be taken in nuclear management.

One of the principles which has been widely applied in recent years is the participation principle. It has to be admitted that up to now its application in the nuclear field has been limited to the compulsory public hearing in the impact study procedure. However, to combat the "not in my back yard" phenomenon greater attention should be paid to it.

The polluter pays principle is often proclaimed but rarely defined. It gives rise to very serious implementation problems in the field of long-life nuclear waste. Among the problems arising with waste is that of the amount of the financial burden and who the debtor should be.

The problem which seems to us to be the most important is that of the long term. It concerns uncertainty and all the legal consequences stemming from it. It is the precautionary principle which should guide action. As regards the nuclear field, it is mainly wastes that are involved here. This principle could then lead to the obligation of a certain minimum performance, such as the application of basic safety rules.

The precautionary principle also highlights the problem of irreversibility. While the concept is not new, being applied in particular in the law of liability (irreparable prejudice), in environmental law it takes on a particular dimension because it concerns the medium and long terms and hence future generations. Irreversibility is also very closely linked with the notion of durable or sustainable development. We must not irreversibly prejudice the future of subsequent generations through our actions.

It should also be pointed out that we are entering a new phase of the nuclear era: the decommissioning of the first nuclear power stations. While the IAEA recognised as early as 1973 the need to include decommissioning aspects in its programmes and to define the general principles for it, there is as yet no Community text specifically on this subject.

The Convention on Nuclear Safety of 1994 contains certain articles which apply directly to it and the Draft Convention on the safety of nuclear waste management devotes more space to it. This is however a question which requires careful attention because it raises problems of safety and is highly visible to the general public: it must therefore be settled in a transparent fashion.

The future will undoubtedly see greater controls and more stringent requirements concerning safety, this in the continued better application of the precautionary principle.

III. Radioactive waste disposal and environmental safety

The concerns felt by the public on matters concerning radioactivity are real and widespread. These concerns are due in part to man’s inability to sense radiation and to the nature of illnesses associated with radiation. The perception of problems associated with radioactivity can itself lead to unforseen impacts. The concern about radioactivity is worsened in some parts of the population by a mistrust of the nuclear industry.

Geological disposal of long-lived radioactive waste is a relatively novel and emotionally charged subject in most societies. Many of the issues related to the consideration of proposals for disposal of radioactive waste are complex and unique to this area, that is to say not subject to widespread public knowledge and understanding. Examples include the concepts of doses and risk, the acceptability of certain doses and risks, and of complex safety cases. These points present particular challenges for the regulator in communicating to the public.

Maintenance of public confidence in the context of the geological disposal of radioactive wastes is crucial, although far from easy. It is essential that the regulatory role is transparent and that communication of this role is effective. This needs to be part of the mechanism for regulating a developer of a deep repository from an early stage.

With the scientific understanding of today we can do a lot to improve the situation, for instance, by structuring and simplifying matters. To separate direct radiation risks from risks following intake is, for many people, important for better understanding. The real big risk of radioactive material would be waste products drifting around in an uncontrolled manner. In such a case the top priority must be to identify, condition, and put into storage the waste products.

The fact that radiation can be shielded from humans, by water, concrete or steel, can be explained and understood by laymen. Also the fact that direct radiation problems are to a large extent a working environmental issue and should not, in the normal case, be of any concern for the third party.

Risks connected to intake are much more complicated to understand. For an outsider as well as for many of those involved, it is almost impossible to understand "what is big and what is small".

Once the spent fuel has been placed in a repository one must realise that potential risks will depend on the chemical form of the radioactive elements. Cesium found in spent fuel can be dissolved into ground water and as such has the possibility to reach biosphere and man. On the other hand cesium and other fission products are relatively short-lived. The remaining long-lived actinides used in today's fuel, staying toxic for many tens of thousands of years, are almost impossible to dissolve in groundwater. If there is a release it can be expected to be very small.

IV. The socio-cultural factors of public acceptance of nuclear power and associated risks

While there exist many definitions of democracy, in simplest terms the word designates "power of the people". Democracy describes a regime in which the people decide effectively the matters of everyday life, and can shape its historic destiny.

However idealistic this definition may be, it must be acknowledged that risks in general and nuclear risks in particular can trigger what looks like an exercise in democracy. Under public pressure, the electronuclear program has been slowed in several North European countries and in the United States.

This idea of "power of the people" is basic to the acceptance today of nuclear power. When asked what would increase their trust in nuclear plant management, respondents to a survey gave this item their top vote:

"An advisory board of local citizens and environmentalists is established to monitor the plant and is given legal authority to shut the plant down if they believe it to be unsafe".

This came first in respondents' choice of trust-making criteria, leaving behind items such as: "Evacuation plans exist, there have been no reported safety problems at the plant during the past year; there is careful selection and training of employees at the plant"; etc.

This result demonstrates a strong taste for democratic control in the public. Does this will imply that democracy should automatically be exercised, without limits, upon choices and decisions regarding, for instance, nuclear risk? Or should decision power be reserved and guided solely by technical expertise and assessment? What is the best balance between these two extremes? What reasons may be advanced for the balance found, that will appeal to all stakeholders?

These are difficult questions, faced by many European nations today in very concrete circumstances: Scandinavian referenda against nuclear power production or waste disposal; a permit application for a waste disposal laboratory refused by local British authorities and an appeal rejected by the national Environment Secretary; a French experiment in democratic siting procedures unable to prevent resistance by local authorities; public outcry over accidents in medical radiation applications resulting in obstacles for nuclear management in Spain; thousands of German police needed to walk a train of nuclear waste through crowds of all ages and economic backgrounds.

Among the many technologies perceived as a source of risk by the public, nuclear energy occupies an outstanding and unique place. Our times seem to be marked by a generalized disenchantment with nuclear energy. While this has been observed for a long time in the United States and in Northern Europe, two countries where nuclear energy appeared to be relatively well accepted, France and Japan, are now showing signs of rejection.

Although it may not now be recognised readily by the public, nuclear energy, along with space exploration, is a hallmark of the 20th century. Nuclear power can be an object of national pride, in its relationship to the political goal of military and energy independence. Nuclear power can be the symbol of high tech achievement and of the control of forces stronger than man. In the practical sphere, it has undeniable benefits for societies demanding reliable, cheap, and abundant energy. Compared to coal or oil burning options, nuclear power has the advantage of reduced pollution.

Nuclear energy grew up in the context of a tacit social contract among political and technological decision makers and the public. To wit, "Nuclear accidents are not supposed to happen". Indeed the results of probabilistic risk evaluations of nuclear power technologies produced very low risk estimates, as if to fit the low level of social acceptance of nuclear accident.

The apparent will to see probabilistic projections coincide with social acceptance is present in the US Nuclear Regulatory Commission's pronouncement in 1985: a TMI-type accident might occur once in 3,300 reactor years; a "worst case" accident in one billion reactor years. In fact, the TMI accident occurred rather early in the series for most people to accept, at about 400 reactor years in the US. The former USSR had some 450 reactor years in operation when the one-in-a-billion "worst case" Chernobyl accident occurred.

These nuclear accidents had wide reaching physical impacts, affecting in their own way public health, the environment, public spending, and management constraints. On a less visible level, they also represent the rupture of a very special social contract that carried the strength of the converging needs and wishes of all parties.

A strong characteristic of nuclear energy lies in its concentration of power. A nuclear power plant produces the energy for which several thermal plants would be required, not to mention the numerous water or wind mills that would be needed for the same output. Paradoxically, an inverse phenomenon seems to be in action in relationship with the public: while the great majority of persons do not live nearby a nuclear power plant and may never have seen one, we can observe phenomena that suggest an immediate psychological and social proximity with the site. For instance, the media succeed in "bringing home" bad news from nuclear installations all over the world. This special proximity is of interest if we focus on local and regional democracy and nuclear risk.

Let us explore the effects of that sense of proximity that the nuclear installation creates with the public. It can be noted how organisational mishaps in Japan with handling of nuclear waste echo in European countries, as do the results of an epidemiological study conducted in France around the Hague, or as do the traces of Chernobyl fallout in South East France revealed recently in contaminated boar meat. This confirms what Hans Blix, former director of the IAEA said in 1986: "A nuclear accident anywhere has consequences everywhere".

This challenges the previous situation, where each country developing this energy source enjoyed a large measure of sovereignty in the design and order of the nuclear program. The technology was managed in accordance with the political, economic, and social principles and projects of each nation. This sovereignty was challenged by Chernobyl, leaving countries to deal with the aftermath as if the accident had happened within their dominion, rather than solely in the former USSR. Most European governments were thrown into a situation requiring not only public health measures but a re-evaluation of nuclear power's cost and energy alternatives. The autonomy of each nation to make decisions regarding nuclear energy was called into question, effectively destroying the social and political balance typical to each country.

Another type of proximity, maybe more obvious at this point and through the post-Chernobyl experience, is the geographic and national one. The toxic release from Chernobyl was widely experienced as transnational. Radioactive clouds covered wide areas, crossing and recrossing numerous borders and frontiers, regardless of national and political characteristics. The differences in official attitudes toward nuclear energy in Europe were revealed by the cloud: to judge from official recommendations and countermeasures, radiation levels could vary drastically on either side of a national border.

In 1986 the European Community was well engaged in preparing to abolish economic borders and open a vast common market. Nevertheless, the sudden levy caused by the Chernobyl accident, producing universal equality under a radioactive cloud, came as a shock. The protective role of frontiers - whose official and legal limits, markers of where proximity becomes invasion, historically established through countless wars and treaties - suddenly ceased. Abrupt closeness was created with a common and pervasive invader. Europe was not ready to cope with the unanticipated demands of transnational solidarity. Today still Chernobyl and the state of the Eastern nuclear park forces consciousness of interconnectedness; Western governments must make available their own resources to reduce the dangers and the impacts.

Another proximity, on a more social level, is that brought through the removal of distances installed since the industrial revolution in the form of division of labour. Energy production has always had human and social costs. For instance, coal mining has an unfinished history of casualties; family groups and communities have seen their history made by the economic pull of the mines and the deaths and disabilities often sustained. Outside groups, however, were not concerned. In contrast, the threat exists that all social groups, at all levels, can be affected by a nuclear accident. No longer do the groups charged with energy production bear all the burden of its human cost.

Those groups whose high living standards were assured by cheap and plentiful energy suddenly find themselves unwillingly sharing the risk involved in producing it. Such radical removal of social distances cannot come about without forced awareness of the division of labour and the inequalities inherent in the system. In short, the psychosocial dimension of nuclear energy can be seen as calling into question the status quo of a given democracy: the prospect or fact of nuclear accident puts pressure on society to become much more egalitarian in terms of sharing risks among social groups.

The confrontation with a situation in which toxic radiation has been or could be released puts people in the presence of an invisible threat that cannot be felt or stopped. In addition to national boundaries and social distances being trespassed, an ultimate limit is swept aside: that of the private distance between inside and outside.

A further dimension of "contamination" can be described by the notion of stigmatisation. Persons, places, products become identified, in the mind of others, with the undesirable characteristics of nuclear pollution. Stigmatisation is at the base of many local arguments against e.g. nuclear waste installations: it is feared that heavy economic losses will occur when the region and its speciality products will bear the "radioactive" mark.

An unusual scenario may help us go farther in addressing the specific problem of local authorities- who find themselves pressured from both sides, to facilitate national energy program requirements and to represent citizens who may show great fear and rejection of an installation.

This scenario appears to be unusual yet it is one that will be seen more and more frequently, and which has already started to be addressed by managers and researchers: the closing of nuclear facilities. Along with the many technical and organisational issues that must be managed, impact appears clearly with respect to the local environment: the ceasing of plant activities means loss on many different levels. The economic and commercial climate is affected by loss of tax revenues and the departure of sometimes hundreds of plant employees and family who gave custom to local businesses. In some cases a local economic recession is created.

Losses are felt as well on the level of social and human resources: with the departure of workers, go active participants in local politics and social activities. Their children swelled and kept open local schools. Friendships and many other links are broken with plant closing, and this creates what might be called a human and social recession. In this way, local authorities play an unaccustomed role: they must manage the disappearance of a sorely regretted nuclear facility.

This scenario encourages us to think about the social networks which persons defend, and which local authorities have the mission to defend. In many cases, persons who reject a planned nuclear facility are probably trying to protect their way of life, which they cannot imagine with a facility in the background. In the case which will become more frequent, the way of life, bringing many benefits to which people have become attached, is threatened in direct and determined ways by the closing of a plant.

All this shows that the perfect management of nuclear facilities in the community-- be they proposed, running, or closing-- has not yet been found. Yet it is clear that in every case good management will require a multiple view point: vision of national energy objectives, of national (and international) requirements for the health and safety of citizens, vision of the technical aspect of the facility, vision of broad psychosocial dynamics and vision of precise local circumstances. Today it is in local commissions that representatives of each of these visions can meet, exchange, and determine where understanding is present and where supplementary information must be gathered and examined. The commission is a means of mediating among all the different rationales which are normally triggered by risk issues.

As such, these local commissions should give representation to local government, to other types of social networks (e.g. commerce associations), to technical actors, to other specially concerned groups (e.g. citizens' associations), and-- as is not presently the case in commissions we are familiar with-- social and medical scientists. The benefits from such a working group are twofold at least. The group should be able to identify, debate, and provide guidance for issues surrounding the nuclear facility under normal conditions. Furthermore, the practice gained through this group in approaching nuclear issues in a multidisciplinary way, and the cooperation developed, can benefit the community in case of nuclear crisis.

The composition and operating record of these nuclear commissions is, however, quite variable. In many cases, plant management takes a preponderant role in the organisation of commission work, probably due to superior economic and professional resources. In some commissions, it would appear that non-technical representatives may feel underqualified to contribute to the debate, or do not know how to give sufficient weight to seemingly trivial concerns of the public. Certain commissions may meet only once a year. Commissions may come to be dominated by a single point of view "for" or "against", their subsequent work entirely devoted to demonstrating this view, or hampered by the resistance of minority members who contest the dominant opinion. The degree and quality of information disseminated to the public at large is also quite variable.

For all these reasons, it would appear that local commissions for nuclear facilities need strong and impartial management. Although their establishment and format may be determined in most settings by national decree, we would suggest that local authorities might well take the lead in organising commission work, in ensuring that this work be a true productive encounter of different points of view, and in making the work available and useful to local citizens. Today many local authorities are caught in the bind between the perceived costs and benefits of nuclear facilities, between proponents and resistants. Rather than pitching with one camp or the other according to circumstances, local authorities can find an appropriate role in actively sponsoring and monitoring the work of the mediating commission.

V. Citizens' right of access to information on nuclear safety

Eleven years ago, when a radioactive cloud from the Chernobyl power station spread over many countries in Europe, the public had to wait days, or even weeks, before they were given access to information about the effects of the disaster. As a result, people across Europe faced needless exposure to high levels of radiation.

Partly as a result of the experience of Chernobyl, it is now generally recognised that:

- access to information is essential if citizens are to participate not just in effective emergency responses for their own self-preservation but also generally in decisions relating to nuclear developments and nuclear waste management and that

- participation by citizens in such decisions is necessary to increase the quality of decisions taken, the level of support for such decisions, and the open appreciation and acceptance of any risks to health and safety and the environment that may follow from such decisions.

The problem is that the industry, governments and regulators continue in many cases to regard public participation in nuclear decision-making as an impediment to the smooth functioning of the industry, a nuisance which must increasingly be tolerated but certainly not welcomed. Thus on the whole the reaction of the industry since Chernobyl has been to see the provision of information as essentially a public relations tool to decrease public fears rather than an authentic method of securing public involvement. It will take a considerable cultural shift in some countries to accept really meaningful levels of public participation in nuclear decision-making.

The United Nations Conference on Environment and Development (UNCED), popularly referred to as ‘the Earth Summit’ or ‘Rio’, was held at Rio de Janeiro in June 1992; all states attending adopted the Rio Declaration on Environment and Development, and Agenda 21 (a programme of action for sustainable development for the 21st century). Principle 10 of the Declaration provides that:

“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous material and activities in their communities, and the opportunity to participate in decision-making processes.”

Chapter 8 of Agenda 21 committed all Governments, in the context of “Integrating environment and development in decision-making”, “to develop or improve mechanisms to facilitate the involvement of concerned individuals, groups and organisations in decision-making at all levels.” To achieve this it was recognised that “ensuring access by the public to relevant information, facilitating the reception of public views and allowing for effective participation” was necessary as well as “establishing procedures for involving local communities in contingency planning for environmental and industrial accidents, and maintaining an open exchange of information on local hazards.”

Paragraph 7 of chapter 39 of Agenda 21 called for ongoing efforts to be made to conclude the ongoing negotiations for a nuclear safety convention in the framework of the International Atomic Energy Agency. The Convention on Nuclear Safety was subsequently negotiated and entered into force on 24 October 1996. It is the first legal instrument that directly addresses the issue of the safety of nuclear power plants worldwide but it has been heavily criticized for its weak and platitudinous content whilst it has nothing whatever to say about the role of citizens in relevant decisions, despite being negotiated and agreed after Rio. In addition whilst the Convention requires the submission of safety reports by the States concerned for examination at peer review meetings at regular intervals, Article 27 specifically preserves States rights to maintain the confidentiality of these reports and expressly prohibits public access to the debates about these reports.

To implement aspects of Chapter 22 of Agenda 21 an “open-ended group of legal and technical experts” under the auspices of the IAEA has drafted an "incentive convention" on the safety of radioactive waste management. Controversy has surrounded

- whether the convention should cover the safety of spent fuel management (notably when the spent fuel has been removed from the reactor site and designated for reprocessing or it has been removed from the reactor site but no decision as to its further use has been taken);

- how the convention should cover radioactive waste resulting from military operations;
- the safety of transboundary movements of radioactive waste.

In 1997 the report for Earth Summit + 5 in respect of Chapter 22 of Agenda 21 (written by the IAEA), stated that:

“ A draft convention on the safety of radioactive waste management is being developed under the auspices of IAEA and with the participation of UNEP, the Commission of European Communities (CEC) and NEA/OECD. Relevant provisions of Agenda 21 are being taken into account”.

It also stated that:

“Nuclear waste legislation has been delayed in several countries because of public opposition to waste repository sites. It is crucial to involve the public and local authorities in decision-making and to build public confidence in the principles that govern the safety of repositories and in waste management programmes... Efforts should be intensified to complete, before the end of 1997, the drafting of the convention on the safety of radioactive waste management, harmonizing its provisions with existing legal instruments covering hazardous wastes and related matters.”

VI. European commitments

United Nations Economic Commission for Europe (“ECE”)

The ECE region covers the whole of Europe. (In addition it covers the Central Asian republics of the former Soviet Union, the United States of America, Canada and Israel, thus involving 55 member States.)

Under the ECE’s auspices negotiations on a new convention on “Access to Environmental Information and Public Participation in Environmental Decision-making” commenced on 17 June 1996. Governments are the main negotiators but non-governmental organizations are playing a major role in addition. The European Environmental Bureau (EEB), which is a federation of about 135 European environmental organisations, is the lead group on public participation within a larger coalition of environmental organisations (including e.g. Friends of the Earth, the World Wide Fund for Nature and Ecojuris (Russian Federation)). This NGO Working Group on Pan-European Environment was set up to follow the “Environment for Europe” process, which has produced “Guidelines on Public Participation in Environmental Decision Making, 1996” as well as the work on the draft Convention. The convention aims to ensure that a citizen will have a basic right to access to environmental information, unless an exemption applies. The presumption will be in favour of access - withholding of information would be the exception. Any citizen would have this right without having to explain why s/he wanted this information.

If the Convention had been in force and implemented in the ECE countries at the time of Chernobyl - in the shape that the NGOs seek - it would have forced the authorities to inform the public at large immediately of the radioactive contamination, so that precautionary measures could have been taken.

The NGOs hope to secure a commitment in the Convention to a response in most circumstances within ten days. The Convention aims to have three parts: (i) guaranteeing citizens access to information, (ii) participation in decision making and (iii) access to justice. Public participation means that when public authorities make decisions about the environment they should involve the public in the process. Rights to information and participation cannot be effectively implemented without rights of appeal, so a low-cost administrative appeal coupled with the possibility of a higher judicial review process is envisaged. Moreover, access to justice should not be limited to cases where access to information or participation is denied, but it should also be applied more generally when there is a violation of environmental law.

The ECE working group has consulted the CLRAE on the draft convention, which will be open for signature at the fourth "Environment for Europe" ministerial meeting in Denmark in June 1998.

The European Union

Whilst any ECE convention will be a voluntary matter for European States in the ECE, European Union Community Regulations or Directives bind the member states and are capable of creating rights for individual EU citizens.

1. EC Directive 90/313/EEC on the Freedom of Access to Information on the Environment

Access is in principle guaranteed by citizens to information on the environment held by public bodies. Legal controversy surrounds

- the numerous widely drafted exemptions
- the definition of the information concerned
- the definition of the public bodies concerned
- arrangements for appeals against refusals.

These definitional difficulties have been used effectively by governments and the nuclear industry to avoid providing information.

2. EC Directive 96/82/EC on the Control of Major Accident Hazards involving dangerous substances: safety reports

This Directive on the Control of Major Accident Hazards involving Dangerous Substances must be transposed into national laws by February 1999. Although it does not include nuclear installations it establishes the principle that the safety report, which includes identification of hazards, is to be made available to the public (see Article 13.4). The regulatory authority may authorise it to be issued in amended form to protect commercial confidentiality. By contrast the current Basic Safety Standards Directive 80/836/Euratom, which deals with radiation protection of the general public and workers, does not establish access rights to the safety cases of nuclear installations. This is perhaps not surprising since it was agreed before Chernobyl. However the replacement Directive 96/29/Euratom has also failed to grant EU citizens the right of access to nuclear safety reports.

3. EC Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment

This Directive establishes that for a number of proposed nuclear projects, the developer’s statement of the project’s environmental effects must be made available to the public for comment. Nuclear power stations and installations for the permanent storage or final disposal of radioactive wastes must be made the subject of an environmental assessment. Other nuclear projects must be made subject to an assessment if they are likely to have significant effects on the environment, which will normally be the case:

* deep drilling for the storage of nuclear waste material
* installations for the production or enrichment of nuclear fuels
* installations for reprocessing irradiated nuclear fuels
* installations for the collection and processing of radioactive wastes
* modifications of nuclear power stations, permanent storage or final disposal installations.

The amending Directive 97/11/EC, required to be implemented by 14th March 1999, ensures that environmental assessment is mandatory for dismantling or decommissioning of nuclear power stations as well as for the establishment of reprocessing and waste disposal sites and the other projects previously not in the mandatory category.

The amending Directive also clarifies and strengthens rights of public participation. It also provides for the participation of the public of one state affected by the development of a project in another state .

4. Basic Safety Standards Directive 80/836/Euratom

This establishes basic radiation protection principles. In particular it provides that no radiation detriment is to be permitted unless it has been justified by the overall advantage that the process giving rise to the radiation detriment will provide (Article 6(a)). Secondly radiation exposures must be kept as low as reasonably achievable (Article 6(b)). No rights for citizens to the information underpinning the justification or the assessment of what is reasonably achievable are provided in the Directive so that technocratic decisions on these two points are shielded from public participation in the absence of other citizen rights. The replacement Directive 96/29/Euratom has also failed to grant EU citizens rights to participate in the decisions about what is justifiable and what is reasonably achievable. These deficiencies reflect the fact that the citizens’ representatives in the European Union, the Parliamentarians, have no legislative rights in the establishment of Radiation Protection laws in the European Union, a significant democratic deficit.

5. Right to participate in making emergency plan

The new Directive on the Control of Major Accident Hazards involving Dangerous Substances guarantees citizens rights of information and participation in the creation of the off-site emergency plan for most hazardous installations (Article 11.3). However once again the Basic Safety Standards Directive and its replacement dealing with nuclear installations provides no equivalent rights. There is no logical reason for this discrimination against communities with nuclear installations.

6. Directive 89/618/Euratom on Informing the General Public about Health Protection Measures to be applied and step to be taken in the event of a radiological emergency

This guarantees (i) that the population “likely to be affected” by a radiological emergency is given information about the health protection measures applicable to it and about the action it should take in the event of such an emergency and (ii) that in the event of an actual emergency the population actually affected is informed without delay of the facts of the emergency, steps to be taken and health protection measures applicable.

The drafting of the Directive however confines the first of these rights to areas where an accident may be anticipated to result in members of the public being exposed to doses in excess of prescribed dose limits. As regulators discount the possibility of accidents with such off-site effects at any appreciable distance, the effect is to confine information to the immediate vicinity of the power station.

VII. Conclusions

Nuclear power plants and the management of nuclear waste generated by the operation of these facilities are matters of past and current debate world-wide. Three general policies can be seen in Europe today namely:

- a moratorium against the constructions of new facilities;

- increased research on operational safety for existing facilities in order to increase operational safety and to mitigate public distrust;

- high ambitions to demonstrate that the nuclear waste can be safely managed by the siting of geological repositories.

In the nuclear waste debate many actors such as the European Union, individual governments, national industry, national licensing authorities and the local municipalities are involved to a greater or lesser degree.

In the past, the debate and the decision making process with regard to nuclear installations have been carried through without seeking acceptance from the directly affected local population. The local population has rarely been given any possibility to participate in the decision making process.

Experience has shown, especially in siting of waste facilities, that the old method of decision making does not work and that the only way to achieve firm decisions and acceptance is openness and participation.

It is important that local opinion is fully taken into account in this decision making process and local authorities must be included in the decision making process in order thereby to include the will of the local population in all the European countries.

The needs of the state to meet energy requirements meant that at some point the decision was made to produce electricity using nuclear power. It was decided to locate nuclear plants according to technocratic criteria, disregarding local needs or interests. At that time, society was in favour of this form of energy, so there was no in-depth analysis of the socio-economic effects of the siting of plants. Nowadays it is acknowledged that nuclear power plants are seriously detrimental to the economic development of surrounding areas because, in spite of what was said when the plants were built, there was no provision for any alternative industries.

If it were seen as necessary today to construct nuclear power plants, governments and businesses would set up systems similar to those applied to radioactive waste, making possible a democratic process of research and site selection, and account would be taken of local interests, in particular of the socio-economic needs of populations.

From any point of view, compensation is not a measure enabling existing realities, such as the nuclear risk, to be ignored, but more a means of creating a consensus on the process of society's democratic development. The key to the success of post-industrial society is the construction of a true participatory democracy, because open discussion reveals many "common interests" which can be taken on board by the institutional tiers concerned: this is the only way to achieve a minimum of agreement leading to active co-operation.

A look at the compensation paid to municipalities in nuclear zones leads us to conclude, on the basis of our assumptions, that local authorities have never tried to exploit their supervisory role in return for any form of economic compensation. To do so would be self-evidently illegal, because it would mean the neglect of duties relating directly to the security of citizens, not only those within the municipality, but also over a much wider area. Consequently, there is no case for refusing to grant to those areas bearing a certain socio-economic role in the wider interests of the state something that is nonetheless offered to other communities in order to lessen the similarly damaging socio-economic effects of other kinds of installations. More precisely, municipalities in nuclear zones must not be condemned to suffer limited growth simply because they were allocated nuclear plants at a time when the ecological ramifications of industrial installations gave no cause for concern, and when nuclear power was seen as progressive by governments and the majority of citizens alike.

There has never been any attempt to offset risk on one side of the balance against financial gain on the other; nonetheless, society must accept the negative impact on nuclear zones, a fact which should be given particular emphasis when decommissioning is discussed.

At the international level it is important that citizens’ rights to environmental information and participation are recognised in international law generally and also in particular international laws dealing with nuclear installations.

In the continent of Europe as a whole, progress in ensuring citizens have rights to information and participation in nuclear decision-making will be enhanced by the finalisation and implementation of the ECE Convention.

Within the European Union, similar progress will depend on amending the Directive on Freedom of Access to Environmental Information to ensure that its exemptions are narrowed and not abused, that its application is enlarged to include health and safety information and that the bodies it applies to are clarified to ensure that the nuclear industry, private or public, is covered. Secondly the right of a community to see a hazardous installations’s safety report and to be involved in emergency planning for that installation should be extended to nuclear installations. Such an extension may well depend on the democratisation of nuclear decision-making within the European Union institutions and particularly the reform of the Euratom Treaty, so that Parliamentarians can insist on this legislative change.