The Swedish Environmental Court is to rule on the proposed spent fuel repository in Forsmark

by Johan Swahn, director of MKG and member of the Management Board of NTW

On January 23rd, 2018, the Swedish Land and Environmental Court plans to give its opinion to the government on whether to allow the final repository for spent nuclear fuel in Forsmark. This is an important, but not the last, decision in the review of the license application that was submitted by the nuclear waste company SKB (Swedish Nuclear Fuel and Waste Management Co) in 2011. The ruling will come after 20 days of competent and eventful deliberations in the main meeting of the court during 5 weeks from the beginning of September until the end of October. The main meeting of the court, this is the official translation of the Swedish word “Huvudförhandling”, is the final, open and very democratic deliberation that takes place before the court takes a decision on a license application, and where all parties summarise their views legally and on issues. Anyone can attend and speak their view.

 The decision of the court, that has been postponed from the original plan of December 20th due to the huge volume of information that the court has to take into due account, will be very important for the future of the repository. The court has many difficult issues to manage as it writes its opinion and it remains a clearly open question whether it will say yes or no to the spent fuel repository.

 The planned repository for the final estimated 11 000 tons of Swedish high level radioactive waste in the form of spent nuclear fuel is to be constructed 120 km north of Stockholm on the Baltic coast, immediately South of the Forsmark Nuclear Power Plant in Östhammar Community. A copper canister encapsulation plant is to be constructed at the present intermediate storage facility for spent nuclear fuel, Clab, at the Oskarshamn nuclear power plant on the Southeast coast. The application for a license for the repository according to the Environmental Act was submitted to the court in March 2011 after a long consultation process from 2003-2010 and the choice of Forsmark for the site in 2009.

 The license application to the environmental court is being reviewed in parallel with a similar application to the Swedish regulator SSM (Swedish Radiation Safety Authority) according to the Nuclear Activities Act. From 2011 until the end of 2015 SSM has been asking SKB for additional information to make the application complete. SSM will give its opinion on the license to the government before or after the time of the court’s opinion. The government will use the two opinions to make its own decision whether to allow the repository or not.

 During the main meeting of the court that started on September 5thand was concluded on October 26th there were a number of issues that were under deliberation. The most important one was to what degree uncertainties regarding the long-term safety of the repository can remain after the court opinion and the government decision. This issue became especially important, as there was a highly competent input at the hearings by researchers from the Royal Institute of Technology in Stockholm that claimed that the integrity of the copper canister could be questioned. They claimed that many of the copper canisters encapsulating the spent fuel, and therefore vital for the long-term safety case, could start to leak before a thousand years have passed. The nuclear waste company SKB claims that only one canister will start to leak in a million years. But if a few hundred of the total six thousand copper canisters start leaking relatively soon, the dose limits of the regulator SSM (Swedish Radiation Safety Authority) will be exceeded and the repository should not be given a license.

 There were also other issues at stake during the main hearing; discussions of whether a deep borehole repository would be safer; whether the site is suitable due to geological and other issues; the very high ecological values at the Forsmark site; and many other issues were covered. And there was also, most importantly, an intense legal discussion regarding the implementation of the Environmental Act that governs the work and decisions of the environmental court and the connections with the implementation of the Nuclear Activities Act, which governs the decision-making of the regulator SSM.

 To understand the discussion a little background is needed. The Swedish Environmental Act dates from the late 1990s and requires that all activities that can harm the environment must have a license. The environmental court rules on and gives conditions for the license. The environmental courts have been working for over 25 years so by this time precedents exists for many types of activities. The Swedish Nuclear Activities Act is from 1983 and all nuclear activities also must have a license according to this law. This means that a final repository for spent fuel has to have a license according to both legislations. In both cases the repository has also to be approved by the government. According to the Environmental Act this is true only for a small list of activities that for instance also includes major infrastructure projects. But this means that at this stage in the decision-making process the court and the regulator SSM will only give their opinions to the government. Licenses are issued afterwards if the government says gives its approval.

 The parallel decision-making processes could be problematic if the court and the regulator SSM did not have the same basis for license review. In order for this to be the case the Nuclear Activities Act was immediately changed to have Chapter 2 of the Environmental Act with the “General rules of consideration” incorporated to be used for decisions. In addition when the new legal framework was set up it was foreseen that the decision-making according to the two legislations was to be parallel and coordinated.

 The “General rules of consideration” of the Environmental Act are very important for environmental decision-making and praxis has been established what has to be shown, how to consider the precautionary principle and how to define and evaluate the use of best possible technology and site. In its evaluation of the license application according to the Nuclear Activities Act the regulator SSM is to use the same evaluation criteria.

 At the main hearing of the court it became evident that something was amiss regarding SSM’s decision-making in relation to the Environmental Act. SSM had already in June 2015 told the court that the application was complete with regards to the Environmental Act. One year later SSM told the court that it was plausible that it could be shown that the repository would have a sufficient radiation safety in the long term. Some issues remained, amongst them issues regarding the integrity of the copper canister, but these could be resolved in the step-wise decision-making that SSM foresaw after the government’s decision. SSM will give a license for construction first and then later a license for trial operation and finally for operation.

 During the main hearing the environmental court was indirectly very critical of SSM by asking the regulator a number of questions. This started already on the third day of the proceedings and the questions from the court grew in number and complexity throughout the main meeting. The court wanted to know how SSM saw its role in the decision-making according to the Environmental Act. The court wanted to know why SSM stated that it was “plausible to show” only and not that “it is shown” as is required according to the “General rules of consideration”. Also it became apparent that the definition of best available technology that SSM was using is less strict than that used by the environmental courts.

 It would appear as though the court will have a problem with the actions of the regulator when deciding what to say to the government. It appears as though SSM has not put in enough effort to ensure they have the information they need to say that it is shown that the repository is safe. Instead SSM wants the court to let it deal with issues later. But the court cannot deal with issues later and would expect the SSM to follow its own legislation. Towards the end of the main meeting SSM boldly stated that the environmental court should not deal with issues where it had stated that it is “plausible to show”. The court can do this. It is not legally obliged to take on issues that other authorities can handle, i.e., the radiation safety issues that SSM examines. In the case of a spent fuel repository the long-term radiation safety is of course a central environmental issue, and it can be questioned if the court should follow the wishes of SSM, and the nuclear waste company SKB, to stay away from radiation safety issues. But, legally it is up to the court to decide.

 If the court were to leave the radiation safety issues to SSM for the government’s decision and for the future decision-making process, it would have to trust the integrity and independence of the regulator. During the main hearing the court SSM in its various statements agreed entirely and without any reservations with what the nuclear waste company SKB was stating regarding long-term safety, as well as choice of site and method. This despite the on-going controversies in the room. Towards the end of the proceedings leaked documents from SSM were published in Swedish media showing that there was no consensus within the regulator about going ahead and saying that long term safety was plausible. Instead, it was revealed that several of SSM’s experts, including the materials and corrosion expert, were opposed to giving the go-ahead. This behaviour of SSM has generally weakened the trust of the regulator, but to what extent it has influenced the court remains to be seen.

 The court will give its opinion to the government on January 23rd. SSM has said it will give its opinion to the government around the new year. The government then has to ask the two communities involved in the project, Östhammar and Oskarshamn if they approve or not. Östhammar community is planning a referendum on the issue for March 4th. The government will prepare for a decision during the spring but it is uncertain whether a decision will be taken before the next elections in September. After the elections it will take time to form a new government, so a likely timeframe for a government decision on the spent fuel repository is in the spring of 2019.

 If the government says yes, there is still a long legal procedure ahead until the licenses to start construction will be ready. The government’s decision according to the Environmental Act can be appealed. The court has then to decide on the license and conditions, likely with a new hearing beforehand, and the court’s decision can be appealed. The government’s decision according to the Nuclear Activities Act can be appealed. SSM has to review a new safety analysis report before deciding to give a license to start construction.

 Finally, it will take at least seven years to build the repository and the regulator has to give licenses both for a trial operation and a full operation. If everything goes as the nuclear waste company SKB hopes there could be an operational Swedish repository for spent nuclear fuel in the mid-2030s.

If the environmental court says no on January 23rd the repository may still get a go-ahead from the government. If Östhammar community says yes despite a no from the court the Government can overrule the court, but it cannot contradict the Environmental Act doing it. If Östhammar community says no, the veto of the community is not absolute. The government under certain conditions can override the veto. However, the nuclear waste company SKB has said it will not go ahead with the repository against the will of Östhammar community.

 It is not an understatement to say that what the court says on January 23rd, 2017, will be of utmost importance for the future of the Swedish nuclear industry’s plans for disposal of spent nuclear fuel.