Foreword

The draft Federal Law of the Russian Federation “On Management of Radioactive Waste” (hereinafter, the Bill) has been under preparation by Russian legislators for over ten years. At present, the bill is going through its second reading at the lower house of the Russian parliament, the State Duma.

According to the requirements set forth by the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, which Russia signed in Vienna in 1999 and ratified in 2005, countries that employ nuclear energy must have a regulatory and legal framework in place to ensure safe management of spent nuclear fuel (SNF) and radioactive waste. The proposed legislation will govern all legal relations arising in the field of management of SNF and radioactive waste. As an instrument to regulate such relations, the Bill is without doubt a necessity. Precisely how such relations will be regulated by the Bill in its current form, however, is a different matter. For the reader’s convenience, the following analysis has been divided into three distinct parts detailing the potential ecological, social, and economical issues raised by the Bill. This analysis represents the opinion shared equally by Bellona and the majority of experts working with ecological non-governmental organisations in Russia.

The ecological impact

1. The fundamental ecological problem that arises with the passing of the Bill is that it will legalise the existing practice of injecting liquid radioactive waste (LRW) inside geological formations for disposal.

As per Article 29, Section 1: “Underground disposal of liquid radioactive waste may be executed, in accordance with the requirements of federal regulations and rules, inside geological formations (“collector horizons”) as limited by the bounds of the area allotted, within which liquid radioactive waste must remain localised.”

No other country in the world besides Russia pumps its radioactive waste into underground geological formations. As of now, the International Atomic Energy Agency (IAEA) does not even have relevant regulations that might provide guidelines for such a method of disposing of liquid radioactive waste. The IAEA’s position so far has been that because this method of LRW disposal, due to its extreme unpopularity among the general public, is not practiced anywhere in the world but Russia, there is hardly any need to include it into the existing regulations.

The method provides no guarantees that once underground, the LRW will not migrate and penetrate into adjacent aquifers, with the risk that radionuclides will then end up contaminating water supply systems in populated areas. The requirement set forth by the Bill that the liquid radioactive waste remain localised within the bounds of the area allotted for the disposal – this is stipulated in Article 31, Section 2 – is, for all intents and purposes, nothing more than an exercise in vain wishing on the part of the Russian state nuclear corporation Rosatom and falls well within the category of “hypothetical” or “theoretical.” As of today, there are no feasible technological solutions that would rule out the risk of liquid radioactive waste permeating water-bearing strata if the disposal site becomes “delocalised.” Assurances made by the atomic industry as to the reliability of liquid radioactive waste remaining localised in deep underground formations are based on observations that fail to allow for extrapolations over a period of 100 years or more. Such reliability may endure for decades and then rendered naught by one single jolt of seismic activity miles away from the disposal site. The practice of injecting liquid radioactive waste into underground “collector layers” is a ticking bomb liable to go off at any moment in the future.

If the bill currently under consideration in Russia is passed, it will force the IAEA to readjust its regulations with regard to LRW disposal methods. This, in turn, will necessarily legalise underground disposal of LRW internationally – with a variety of unforeseeable consequences to follow, since there is no telling which country, and using which specific technologies, will want to use this mode of LRW disposal, newly approved by the IAEA.

By the Bill’s logic, liquid radioactive waste produced as a by-product of chemical reprocessing and uranium enrichment operations at the Mining and Chemical Combine in Zheleznogorsk (Krasnoyarsk Region) or the Siberian Chemical Combine in Seversk (Tomsk Region) – that is, the main sites where such waste is generated in Russia – and injected underground will be reclassified as “special (non-removable) radioactive waste.” This follows from Article 31, Section 2, which states that deep geological formations are sites for deep interment of radioactive waste – in other words, according to Article 3, Section 13, sites from which radioactive waste will not be extracted (removed). 

Yet, according to Article 27, Section 2 of the Bill, “Construction of industrial sites and creation of industrial technologies is prohibited where it will necessarily lead to the generation of special (non-removable) radioactive waste.” So, if one were to abide by the proposed law in its entirety, the construction of the spent nuclear fuel reprocessing facility RT-2 in Zheleznogorsk – much like the application of any new technologies that will result in generation of liquid radioactive waste and its subsequent injection underground (i.e. generation of special, non-removable waste) – must be stopped the minute the Bill is passed into law. 

Furthermore, as independent experts point out, Article 31, Section 2 of the Bill contradicts Article 56, Section 5 of the Water Code of the Russian Federation, which states: “Disposal of nuclear materials and radioactive waste in water bodies is prohibited.” Rosatom experts insist that geological formations (“collector horizons”) are not water bodies. Yet, the disposal site used for underground injection of liquid radioactive waste at the Kalinin Nuclear Power Plant (Udomlya, Tver Region) is located in an area characterised by difficult water exchange conditions. Salt content in the water found in the formation is estimated at 220 grams per litre, and the movement of groundwater is thought to be at a level of modestly sized shifts per year. That is, the formation is an aquifer, where groundwater does move, if insignificantly. The definition of water resources provided for by the Water Code of the Russian Federation covers “surface and underground waters which are found in water bodies and are used or may be used.” Then, according to the Water Code, water bodies are “natural or artificial reservoirs, water streams, or other bodies, where permanent or temporary concentration of water exhibits the characteristic forms and marks of a water regime (i.e. changes in the level, flow, and volume of water in the water body over time).”

Therefore, it is the opinion of independent experts that the meaning intended by Article 56, Section 5 of the Water Code of the Russian Federation is as follows:

–          it is prohibited to dispose of (dump, inject etc.) nuclear materials and radioactive waste in water bodies;

–          it is prohibited to create water bodies by way of dumping (collecting, injecting) liquid water resources saturated with artificial radionuclides to a level whereupon such resources are classified as liquid radioactive waste.

Since water bodies saturated with radionuclides are created as a result of injecting LRW into collector formations, the provisions suggested in Article 31, Section 2 of the Bill are in contradiction to Article 56, Section 5 of the Water Code.

1. According to Article 48, Section 3 of the Law of the Russian Federation “On the Protection of the Environment,” “Importation of radioactive waste from foreign states into the Russian Federation on the basis of contracts of storage, including for purposes of interment, as well as dumping radioactive waste and nuclear materials [in water bodies] and ejecting them for disposal in outer space, is prohibited except such cases as stipulated by this Federal Law.”

The Law of the Russian Federation “On the Protection of the Environment” only dealt with imports of nuclear materials into the country. No Russian law – including the law “On the Protection of the Environment” – had any provisions for imports of radioactive waste.

The new bill dealing with management of radioactive waste has Article 32, entitled “Particularities of import and export of radioactive waste,” which will allow the import of radioactive waste into the Russian Federation on certain conditions. Namely, Section 2 of Article 32 states: “It is permitted to import into the Russian Federation spent sealed sources of ionising radiation produced on the territory of the Russian Federation, including for purposes of their regeneration or interment.” Furthermore, as stated in Section 5 of the same article, “It is permissible to import into the territory of the Russian Federation, in accordance with the procedure established by the Government of the Russian Federation, contaminated materials for purposes of their decontamination and reprocessing on the conditions of:

–          a signed international contract stipulating the obligatory exportation of radioactive waste;

–          obligatory exportation of all radioactive waste generated in the process of decontamination or reprocessing of said materials from the territory of the Russian Federation to the country of origin of radioactively contaminated materials within a time frame not exceeding one year.

The Bill, therefore, cracks open a window allowing the import of radioactive waste into Russia. In our assessment – and taking into consideration the high levels of corruption and across-the-board disregard for the rule of law in the country – every condition contained in the Bill will not be observed, since there are no mechanisms to enforce them and ensure to any degree of certainty that they will be met. Furthermore, a growing industry of reprocessing foreign radioactive waste will increase the frequency and volume of transports of hazardous goods, thus augmenting the risks associated with such shipments for population health and the well-being of the environment.

The social impact

According to Article 13, Section 2 of the Bill, “Decisions with regard to designing, selecting the location for, building, operating, and closing sites of disposal of radioactive waste shall be made by the Government of the Russian Federation in accordance with the procedure established by the legislation of the Russian Federation and on proposals from the body of state administration in the sphere of management of radioactive waste.”

Article 7 of the Bill determines the different mandates afforded the various bodies of state government in the constituent entities of the Russian Federation and local municipalities. According to Section 1 of Article 7, bodies of state government in the constituent entities of the Russian Federation will “take part in and coordinate decisions” with regard to selecting the location for and building radioactive waste storage facilities on the territory of their respective constituent entities. Section 2 of the same article, however, states that local municipal authorities will only “take part” as the decision-making process takes place with regard to selecting sites for storage of radioactive waste in their municipalities.

To “decide” means to mark an idea as ready for prospective execution, while “coordinating decisions” suggests working out a unanimous opinion in a discussion about a decision already made. In other words, “making decisions” is quite different from “coordinating” them, in that the coordinating party is simply informed as a matter of fact that the decision in question has been made.

The Bill says that such “coordination” is done in accordance with procedures established in Chapter 3 of the Urban Development Code of the Russian Federation. Section 1 of Article 12 of that chapter states that “Subject to coordination with the higher executive bodies of state government of a constituent entity of the Russian Federation are issues of siting such federal capital construction projects that may have a negative environmental impact on the territory of this constituent entity of the Russian Federation.” In plain language, these decisions will only be “coordinated” with the Governor in charge of the region in question. Legislative assemblies – those citizens who hold the mandate to represent the public – do not take part in this process. In essence, this means that local executive bodies will simply be informed of the fact that a decision has been made to build a radioactive waste storage facility in their region, while the legislative branch will have no say in the matter whatsoever.

The Bill does even worse by municipal authorities. According to the proposed language, they will not even have the right to “coordinate” the decisions made, but will only be able to “take part.”

If, for any reason, regional or municipal authorities fail to coordinate an across-the-board approval of a radioactive waste storage facility construction project, a “conciliatory commission” is to be put together to settle on a decision within a period of three months.

Ultimately, the population residing in areas where authorities decide to build radioactive waste storage sites will be completely excluded from the decision-making process. This process does not even involve the participation of legislative bodies in the constituent entity potentially affected by such a decision. All will remain in the hands of Rosatom and local executive bodies – who, as practical experience suggests, fully depend on the official position and decisions agreed upon in Moscow.

The economic impact

1. The Bill places the burden of financial responsibility for managing radioactive waste – including its final disposal – on the waste’s producers. Because the Bill, while placing that additional responsibility on radioactive waste producers, will not have retroactive force, this financial responsibility on the part of producers will only be legally in force after the Bill is passed. Therefore, the burden of financial responsibility for the management of the radioactive waste that was or will be generated before the Bill’s provisions are passed into law, will not be placed on the waste producers, but, in all probability, will be laid squarely on the budget and other such sources of funding – for instance, projects supported by international donors or federal target programmes. This casts a shadow of doubt on the conclusion stated in the Financial Feasibility Study done prior to the writing of the Bill that “the Bill’s passing will not lead to additional expenditures from the federal budget” and that “the Bill stipulates obligatory financial security to be provided by producers of radioactive waste toward measures of disposal of this waste while transferring this radioactive waste for disposal.”

Such statements mislead the legislators since the expenses potentially incurred on the federal budget by safeguarding the “accumulated waste” will undoubtedly be of quite a considerable proportion. Furthermore, the conclusions stated in the Financial Feasibility Study are in contradiction with the language of the Bill itself, mainly Article 23, Section 1, which says: “Financial security provided toward the activities involved in the management of radioactive waste is based on the multiplicity of sources of financing and is effected by means of budgetary appropriations from the federal budget and the budgets of the constituent entities of the Russian Federation, funds held in special reserves of the body of state administration in the sphere of management of radioactive waste, funds held by producers of radioactive waste, as well as other sources not explicitly banned by the legislation of the Russian Federation.”

1. The Bill determines the procedure to govern the financing of the radioactive waste management process. All payments executed by producers of radioactive waste will enter on the balance of a special reserve fund held by Rosatom, via accounts handled by a national operator. According to the Bill, this national operator will be chosen by the Government of the Russian Federation on a candidacy proposal from Rosatom. The Bill also states that Rosatom will exercise full control over the activities of the national operator, including all financial operations. Another division is thus expected to be formed as part of the vast Rosatom structure that will deal immediately with the issues of management of radioactive waste and collect disposal fees from radioactive waste producers.

Such a system is not deemed advisable for the following reasons. Essentially, this means no transformations will be undertaken in the existing system of how radioactive waste generated by Rosatom enterprises is managed. The only change the Bill introduces is that all relations pertaining to the management of radioactive waste will be structurally concentrated inside Rosatom. All radioactive waste and all funds related to its management will remain within the scope of the nuclear authority’s control. The only difference is that additionally, Rosatom will also be the recipient of money sent for radioactive waste management by waste-generating enterprises operating outside its purview. Notably, it will be Rosatom, too, that will set the pricing policy for services involved in accepting radioactive waste from industry “outsiders.” The total subordination of the future national operator to Rosatom and its dependence on Rosatom’s policies, as well as the decision to place all money collected for the handling of the produced waste in Rosatom’s “special reserve fund,” could lead to a situation where all attempts to solve Russia’s radiation safety issues will fail systematically. This special reserve fund envisioned within Rosatom’s structure will likely be some sort of a “secret coffer,” much like another one already operated by Rosatom – the Fund for the Decommissioning of Sites of Application of Atomic Energy. It will be impossible to understand, much less supervise, exactly what sort of treasure this coffer contains and what comes into it or goes out of it. How much and for which projects Rosatom will be using the money it will receive from producers of radioactive waste will forever be a mystery wrapped in an enigma. To top it all, the Bill does not envision any payments to those regions and federal constituent entities where radioactive waste storage and interment sties will be built. To paraphrase the famous Russian folk tale, The Roots and the Leaves – a parable of an eternal story where the clever and the powerful always come out on top at the expense of the little guy – there will be lots of ploughing to go around, but it will only be a select few who will get to take home the harvest.

1. The Bill fails to regulate exhaustively the issues pertaining to the right of ownership over radioactive waste generated at various sites. As the law currently stands, the right of ownership covering radioactive waste is only determined by one factor: The owner is the enterprise where the waste has been generated. Yet, the situation with management of radioactive waste is not so simple where various technological aspects are concerned. For instance, considerable amounts of radioactive waste are generated as a by-product of reprocessing spent nuclear fuel burned in commercial nuclear reactors. That waste, however, is not considered to be the property of nuclear power plants, but belongs to the SNF reprocessing plant RT-1 – which is not among those Rosatom structures that were re-incorporated as entities of a government-owned stock company that Rosatom became in 2008, when it acquired the legal status of a state corporation, but is effectively owned and operated by the state via the chemical reprocessing enterprise Mayak in Ozersk, a town the Urals. This is why it is important first to determine who will hold the right of ownership over the radioactive waste already generated or expected to be generated as a result of services rendered in the sphere of management of nuclear and radioactive materials. Logic suggests the owner should be the party placing an order for such services. It is likewise necessary to provide guidelines to help determine the holder of the right of ownership in situations where nuclear or radioactive materials are re-classified as radioactive waste.

There are so many different types of radioactive waste that not all of them even have their own definitions – not to mention the issue of ascertaining the owner in each specific case. To prevent a potential rise in corruption schemes that enterprises might try to employ in order to evade responsibility for radioactive waste generated as part of their operations, audits will have to be conducted to determine the legal entities exercising the right of ownership over the waste in question. This will help establish the precise scope of financial responsibility for the management of radioactive waste produced and bring to a minimum the so-called “abandoned” waste – materials whose owner cannot be identified with sufficient certainty – thus reducing the burden of expenses on the state budget.

The second stage that will be fundamental to creating an efficient system of state management of radioactive waste is a preliminary economic estimate of the efforts to be undertaken to solve the disposal problem. Absent such an estimate, it will be extremely hard to ensure that correct standards and regulations are being established or that the money allocated to the disposal of radioactive waste and held in Rosatom’s special reserve funds is being spent in due manner.

In order to clarify the issues surrounding the financial responsibility for the management of radioactive waste and the system of payment for handling services, Article 23 of the Bill must be appended with an additional section detailing clear requirements with regard to financial responsibility. In particular, this additional section must prescribe that:

1.  
   • legal entities engaged in commercial activities and exercising the right of ownership over the radioactive waste generated as a result of these activities shall bear full financial responsibility for the management of this radioactive waste until such moment as this waste is transferred over to the national operator, and shall assume all costs associated with the management of this radioactive waste by the national operator;
   • standard guidelines for fees paid toward the financing of management of radioactive waste and guidelines for payments made to the special reserve funds maintained by the State Nuclear Corporation Rosatom shall be established with due account for the premise of full financial responsibility on the part of legal entities engaged in commercial activities and exercising the right of ownership over the radioactive waste generated as a result of these activities.

Conclusion

The passing of a law governing the management of radioactive waste in Russia is some 50 years overdue. This, in all likelihood, is the reason why such a deplorable state of affairs has developed where handling the stockpiles of radioactive waste amassed by the Soviet Union and then Russia is concerned. The very attempt to legislate the legal relations that exist in this field is undoubtedly a praiseworthy endeavour.

The Bill offers a number of favourable and concrete provisions which, in our opinion, will facilitate solving the problems accumulated in the field of management of radioactive waste. Of these, the principal are:

• Article 3 of the Bill provides definitions for the main terms and concepts used in the sphere of management of radioactive waste, which complements significantly the definitions found in earlier laws and regulations.
• Article 9 of the Bill determines the owners of the sites of storage of radioactive waste, including sites of long-term storage, dead storage, and interment of radioactive waste, which removes, to a certain degree, the legal ambiguities and the resulting unaccountability that have made such sites an increased hazard for population health and the well-being of the environment.
• Chapter 2 of the Bill describes the objectives, governing principles, and structure of a new agency, the Unified System of State Management of Radioactive Waste. None of the legislative acts currently in force in Russia have previously codified the functions of a structure in charge of all issues associated with the management of radioactive waste. The same chapter declares the main principle to govern the System’s operations, which determines as the absolute priority the protection of the life and health of both living and future human generations and the environment from the harmful impact of radioactive waste. It is also in this chapter that full financial responsibility is placed on producers of radioactive waste for the management of such waste, including its safe disposal. Article 12 of the chapter provides for a distinction between federal radioactive waste disposal sites and regional ones, which has a bearing on the determination of the rights and responsibilities assigned to the relevant government authorities. The same chapter provides for the creation of the national operator for the management of radioactive waste, and Article 20 details its mandate and its functions.
• Articles 21 and 22 describe the obligations and responsibilities of producers of radioactive waste and specialised enterprises engaged in managing radioactive waste, which offers, at least partly, a measure of clarity as to the eternal question: Who is to blame?

Other articles of the Bill provide a number of necessary guidelines such as for the financing of management costs, requirements set for storage sites, requirements set for the management of different types and categories of radioactive waste etc. The problem is, however, that the formally well-intended chapters and articles do not always offer the right and reasonable content. The result is that the Bill has quite many drawbacks and ambiguities. The chief among them have been listed and commented on earlier in this document. Besides the deficiencies described, we feel it is necessary to add the following:

It is without doubt that the state nuclear corporation Rosatom has prepared this law to conform to its own needs and interests. This is evidenced by the principal general concept realised in the Bill. The gist of it is that:

First, – all funds transferred over from producers of radioactive waste will remain at Rosatom’s disposal, and precisely how they will be used is unclear. It is a matter of general understanding that realistically, no one will be able to control the spending, which means that Rosatom will exercise its own judgment with regard to these funds.

Second, – the national operator proposed as a component of the new Unified System of State Management of Radioactive Waste is envisioned as an entity totally dependent on and subordinate to Rosatom – in contrast to the way such agencies operate in other countries (Sweden, for instance). This means that in the context of the proverbial “power vertical” instituted in Russia, this national operator will be fully controlled and governed by the upper management of the nuclear authority, and it is far from certain that for Rosatom the goal of ensuring safe management of radioactive waste is among top priorities.

Third, –  the Bill introduces the notion of “accumulated radioactive waste” – in other words, waste that has been generated up until the moment the new federal law comes into force. Therefore – and in light of the comments above – Rosatom is effectively exonerating itself from any (first and foremost, financial) responsibility for all the waste that the former nuclear ministry has previously produced. One could agree that it might be logical, or even fair, that the state should foot the bill for all the waste accumulated in the decades since nuclear energy was first harnessed in the former Soviet Union: In the 60 years prior to its becoming a commercial enterprise, a government-owned corporation, Rosatom – first, the Ministry of Medium-Level Machine Engineering, then the Ministry of Atomic Energy, then the Federal Agency of Atomic Energy – was a purely state structure and no funds were ever created to solve the problems of radioactive waste. The Bill proposes that this “inherited” waste, just like all the other waste, become the responsibility of the national operator – in other words, Rosatom – with the financing needed to cover these works coming from the federal budget. However, neither Article 23, “Financing of radioactive waste management expenditures,” nor any other articles in the Bill detail the procedure by which these activities will be financed. This will create another “secret treasure chest” for Rosatom’s radioactive waste management activities, to be managed as the nuclear authority sees fit.

Fourth, – the Bill introduces the notion of a new type of radioactive waste: the “special (non-removable) radioactive waste.” Again, Rosatom is the entity that will make decisions as to which waste will be declared “non-removable.” This may create precedents where the category of “special (non-removable) radioactive waste” will be deliberately expanded to include, for instance, decommissioned reactors at nuclear power plants, storage sites that for a variety of reasons present an increased safety risk and sites formerly used by the military, “loose ends” left over from concluded military nuclear programmes, sites of “peaceful” nuclear explosions, etc. All this may lead to a situation where, due to a lack of funding needed, for instance, to take out of service and decommission a nuclear power plant, storage facilities will first be created and then “special” radioactive waste mothballing sites – all in accordance with the law (costs of removal of radioactive waste from a storage facility, with subsequent management and interment, exceed those of interring such waste on site, see Article 4).

These four examples are proof that the authors of the Bill were first and foremost concerned with the interests of the state corporation Rosatom, not with safe management of radioactive waste.

In order that the requirements and provisions of the Bill be realised, some fifteen additional federal standards and regulations need to be developed and passed into law to properly legislate the field of radioactive waste management. As experience and established practice suggest, such documents will likely be developed with no public participation or discussion of any kind, and again, it will be another mystery wrapped in an enigma as to what sort of safety requirements will be set forth with regard to the sites of storage of radioactive waste, its transportation, inventorying, or monitoring and control.

Having analysed all the articles of the proposed law, we make the assessment that twenty-one of the Bill’s forty-one articles are of a “neutral” nature – that is, the norms and requirements set by these articles will neither aggravate nor improve the situation with radioactive waste in Russia. Some of these articles could even be removed from the Bill with no detriment to its contents, since they duplicate other regulations already in effect.

Six articles in the Bill – Articles 3, 9, 10, 12, 13, and 16 – introduce new and favourable regulations that may to one extent or another contribute toward better practices of handling radioactive waste in the country.

Fourteen articles in the Bill – Articles 4, 7, 11, 18, 20, 21, 23, 24, 25, 27, 31, 32, 34, and 41 –either require further revisions and elaborations or propose regulations that, in our opinion, will not improve the situation with radioactive waste management, but may, under certain circumstances, even worsen it.  

In summary, should the draft Federal Law of the Russian Federation “On Management of Radioactive Waste,” soon coming up for a second-reading vote in the State Duma, be supported by the Members of Parliament in its current form and with no further amendments, one will be hard-pressed to expect it to produce positive shifts in the way Russia handles the many issues it faces in the field of safe management of radioactive waste.