For the Life and Health
Of Future Generations

Five-member panel of the Supreme Administrative Court upheld the
repealing of the positive environmental impact assessment of the
National repository of radioactive waste

Alexander Kashumov

With a Decision No. 15645 as of November 2013 on administrative case No. 12075/2013, a Five-member panel of the Supreme Administrative Court (SAC) repealed the positive statement of the Minister of Environment and Waters on an environmental impact assessment (EIA) of the National Repository of Radioactive Waste (NRRW) on the ground of “Radiana,” close to the town of Kozloduy.
 
The decision of the Ministry of Environment and Waters (MEW) approving the investment proposal for the construction of the National Repository for the disposal of short-lived low and intermediate level radioactive waste with a contracting authority the State Enterprise "Radioactive Waste" was issued on October 10, 2011.

The decision was appealed before the court by Petar Penchev from the city of Montana, a Chairperson of the National Movement “Ekoglasnost,” in his capacity of citizen. With a Decision No. 11040 as of July 22, 2013 on administrative case 14109/2011, a Three-member panel of the SAC repealed the administrative act of approving the investment project of the NRRW.

This is the second time in 2003, after the repealing of the positive EIA for the reconstruction of the nuclear reactor in the Bulgarian Academy of Science in Sofia, when the court decided in favor of the protection of life and health of the population and the future generations. This court practice affects one of the most secret, unclear and full of manipulations area of life in Bulgaria – the nuclear power industry. Moreover, the authorities have proven their readiness to fight tooth and nail for vague projects with doubtable benefit for the society.

Now, we are hoping that one of the taboos in the Bulgarian transition period – the nuclear power industry, is open to not only public and political debate (something that happened in late 2012), but also to an independent control over the lawfulness of the respective administrative decisions. It is a breakthrough, if we remember that the decision taken for the Nuclear Power Plant “Belene,” taken behind the curtains in April 2004, was initially found as out of the scope of appeal by the majority of a Three-member panel of the SAC. [1]

Every citizen means “public” under the principles set forth by the Aarhus Convention and can appeal decisions that affect their right to healthy environment

The Five-member panel assumed, in confirmation of the decision of the Three-member panel, that even the individual has the right to litigate against the decision of the MEW. The right to a healthy and favorable environment corresponding to established standards and norms is guaranteed by Art. 55 of the Bulgarian Constitution. Pursuant to Art. 3, item of the Environmental Protection Act (EPA), the environmental protection lies on the principle of access to justice on environmental issues. Article 97, Para 2 of the EPA (current Para 3), provides for the organization and holding of public discussion on the EIA report with the participation of all interested individuals and legal bodies, including those, whose interests are affected or could be affected by the implementation of the investment project.

The individuals thus fall in the scope of the term “public” under § 1, item 24 of the Additional Provisions of the EPA. That is why the decisions on the EIA shall be announced via the national media, web sites or other appropriate means so that the information can reach everyone.

In the current case, the investment proposal could have had considerable and lasting negative impact on the environment not only of the Municipality of Kozloduy, but of other regions of the state, including the city of Montana, where the complaint Petar Penchev lives. Consequently, he has a legal interest to challenge the decision on the EIA, without the need to present evidence that the NRRW affects his individual rights and interests.

The Aarhus Convention is directly applicable in Bulgaria

The argument set forth by the cassation applicants – the MEW and the SE RAW, that the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the so called Aarhus Convention) “has no direct effect on our state” is wrong. On the ground of Art. 5, Para 4 of the Constitution of the Republic of Bulgaria, the international treaties, ratified under the constitutional procedure, promulgated and entered into force in Bulgaria are part of the national law and are applied with priority against contradicting national regulations. Consequently, the Convention is directly applicable.

Incompliance with the requirements for conducting an EIA

The court found that in the course of the proceedings, the MEW did not present evidence of assessing the quality of the report on the EIA in line with the criteria provided by Art. 14, Para 1, items 1-7 of the Regulations for the Conditions and the Procedure for Performing EIA (does it correspond to the assignment, are the results of the consultation process and the opinions included, are they analyzed on an equal basis, are alternatives suggested and evaluated, is the level of the impact assessed, etc).

On the other hand, a note “final version” dating 21 February 2011, proves that the report on the EIA had been revised and expanded after the public discussions were held and the MEW assessed it. Such complements in a later stage is acceptable only in accordance with specific requirements, including a new public discussion (Art. 17, Para 1 of the Regulation). After that the complemented report should be put on new quality assessment. There are no data that such actions had been undertaken.

Disrespect to the statements

In the course of the proceedings, it was found that the Ministry of Healthcare had expressed negative statement with letter No. ?? 04-09-340/24.01.2011 and had not sent positive position in a later stage. The remarks presented by the ministry were for incompleteness of the report with regard to the assessment of the health-hygienic aspects and the risk to the human health. There was not a description of the selected model for assessment of the radiation to the population and possible negative characteristics. There were negative statements by other institutions as well – the Basin Directorate, and recommendations from the Executive Environmental Agency – unproven statement that the potential radioactive impact would be located within the limits of the repository ground and its impact beyond those limits was negligible. The conclusion of the court was that the presented statements and recommendations had not been analyzed and considered in the assessment of the quality of the report on the EIA.

Lack of analysis of the alternatives

Pursuant to Art. 96, Para. 1, item 2 of the EPA, the contractor should present to the MEW explored alternatives for the location and/or technologies and the grounds on which those alternatives were selected in consideration of the environmental impact, including “zero alternative.” It is mandatory that the presented alternative are assessed by the MEW as part of the quality assessment of the report on the EIA. The judgments of the two court panels state that the report on the EIA did not contain indepth comparative analysis of the location and parameters of the grounds and they had not been assessed. There was no evidence that the selected ground “Radiana,” which is located within the limits of the secured zone of the Nuclear Power Plant “Kozloduy” was best fitting to the legal requirements.

Lack of assessment on the safety of the NRRW

The court found that the report on the EIA did not contain complete and thorough assessment on the safety of the equipment for management of radioactive waste. According to the effective legislation, analysis on the capacity of the equipment is required to operate safely not only under ordinary conditions of exploitation, but also in cases of any expected events and conditions, including emergency and events with low possibility to occur. For the facilities of disposing radioactive waste – an analysis is required in case of breaking the protection barriers as a result of human activity after the equipment is closed. The EIA report contained ungrounded conclusion that no cumulative radioactive impact on the environment was expected at the exploitation of the project facilities for disposing radioactive waste and of the Nuclear Power Plant that was several kilometers away. The court panels found that the 2008 statistical data on the Municipality of Kozloduy showing that the death rate was higher as a consequence of blood pressure and respiratory diseases compared to the national average. The report did not consider the large volume of reposited waste which increases the radiological impact. The EIA report lacks a detailed analysis on the radiological impact on the territory of Rumania. It was not taken into account that the Danube flows through the territories of different states which requires the discussion on possible environmental pollution in other European states.

Unlawful selection of the type of repository

The SAC decisions contain detailed judgment on the inappropriate selection of the type of the repository – trench type. According to the then effective Regulation of Safe Management of Radioactive Waste (currently repealed), they method of disposal of radioactive waste (RAW) should be determined based on the type, category, activity and radionuclide composition of RAW (solid RAW category 2a should be buried in surface engineering facilities and RAW category  2b  and  category  3  must  be  buried  only  in  geological disposal facilities for radioactive waste.[2]

At the same time, it is curious that the selected type of repository – the investment proposal – is for a tranche type (surface), not for tunnel (geological). According to the Strategy for Management and Disposal of Used Nuclear Fuel and Radioactive Waste 2030, adopted by the government on January 5, 2011, the preferable solution is the disposal of wastes in middle-level and geological facilities. Despite the statement of the Technical Council of the State Enterprise “Radioactive Waste,” grounded on the results of an expert study performed by the Risk Engineering JSC finding that the best type of facility is the tunnel type, the Technical Expert Council to the Minister of Economy, Energy and Tourism decided without any justification that the selection of a surface engineering facilities type of disposal facility was appropriate.

Final conclusions of the Five-member Panel

The above considerations lead to the conclusion that the contested administrative decision is unlawful.
The court found that "a number of issues have not been clarified in full and have not been put to public discussion which are particularly important for the preservation of the environment for present and future generations and the protection of human health, preventing and reducing pollution, conservation of biodiversity, transboundary effects, etc. "

Conclusion

It is worth noting that the materials presented in the course of the proceedings evidence of other violations as well. There is evidence that it was planned that not only low-active and short-lived RAW category 2 would be buried in the NRRW, but also intermediate and high level category 2b and 3. This becomes clear from the correspondence between the MEW and the Ministry of Healthcare. The type of the RAW is directly related to the life and health of people and the environment and is essential for determining the type of repository they will be disposed.
In such a case, the behavior of the MEW raises bewilderment. Is it possible that they are holding back that no assessment was performed with regard to the disposal of intermediate and high level RAW with the purpose of avoiding the construction of more expensive facilities that would guarantee the protection of people’s life and health.

The established facts support the doubt that there are officials in the authorities who will sacrifice the life and health of the people for financial reasons or someone else’s interest.
Unfortunately, this case is not an incident in the nuclear power industry. All the secrecy and lack of transparency surrounding the project for construction of the Nuclear Power Plant “Belene,” not publishing the documents related to the project even for the purposes of the national referendum in January 2013, the refusals during the year for provision of information related to the 2006 accident in the Nuclear Power Plant “Kozloduy,” the replacement of nuclear fuel in 2004, etc. are doubtedly accompanied by any will for work in public interest and care for the life and the health of the people and the future generations.

Maybe, it is not an accident that a lie has been fed for years about the existence of an assessment on the radioactive waste management at the moment when the decision for the construction of the Nuclear Power Plant “Belene” was taken. The truth was revealed on the base of obtained documents in 2006.
Today, the government intends to present to the citizens new plans for the development of nuclear power industry. In order to achieve legitimacy, transparent and appropriate conditions for public discussion on such intentions should be established, as well as for objective and thorough assessment of every project. Because, the revenues of the secret lobbyists will be ephemeral when the welfare of the future generations for hundred years ahead is put at stake.

November 2013

This case is part of the book "Civil Participation and Access to Information (15 Years of the APIA, 37 stories of NGOs)" published by AIP within the implementation of the project “Enhancing the Capacity of Nongovernmental Organizations to Seek Public Information” supported with a grant under the NGO Programme in Bulgaria under the Financial Mechanism of the European Economic Area 2009 – 2014 (www.ngogrants.bg).

The whole responsibility for the content shall be taken by the Access to Information Programme Foundaiton and it cannot be assumed under any circumstances that the document reflects the official stance of the  Financial Mechanism of the European Economic Area and the Operator of the Programme for NGO support in Bulgaria.