Spent nuclear waste from Hungary: Legal issues

Publish date: March 26, 2004

Written by: Andrei Talevlin

CHELYABINSK, Southern Urals—I decided to write this article because of a story concerning the visit of former Prime Minister Mikhail Kasyanov to Hungary late last year. Aside from inter-state issues that the prime minister and his Hungarian colleagues discussed during the visit, the two countries also touched upon collaboration in nuclear energy and concluded a contract on the reconstruction of an emergency power unit at the Hungarian nuclear power plant, Paks.

Talks on the imports of SNF from the Paks plant to Mayak Chemical Combine in the Chelyabinsk Region of Russia were also negotiated. I would hardly have focused on these issues if it had not been for one peculiar fact. In 2001 Russia’s Supreme Court declared the import of Hungarian spent nuclear fuel, or SNF, to Russia to be illegal.

History of the issue
The collaboration in nuclear power exploitation between Hungary and Russia dates back to the era of socialist work camps controlled by the former Soviet Union. The construction of the Paks nuclear power plant began in 1966, immediately after an agreement on joint construction between Hungary and Russia had been signed. The first power unit at Paks which was based on the Soviet nuclear VVER-440 reactor was launched in 1983. The Paks plant has been online since then. Currently, four units, with a total capacity of 1760 megawatts, operate at the plant.

During the 31 years of its operation, a large amount of SNF has accumulated at the Paks plant. SNF is the Achilles’ heel of the nuclear industry. In 1994 Hungary and Russia, as parties of the international agreement of 1966 on joint construction of the Paks nuclear power plant, adopted a protocol to this agreement.

As per this protocol, Russia, as part of the former USSR, was to receive SNF from Hungary in the form of fuel assemblies and ship fresh nuclear fuel to Paks. It is curious that how this radioactive waste would be handled—via reprocessing or storage—was never stipulated in the agreement or the later protocol.

By then, a bill entitled “On Environmental Protection” that banned the import of not only radioactive waste, but also of any other foreign radioactive materials to Russia, had taken force as legislation. The handling of radioactive waste as per the protocol conflicted with the proposed legislation.

Then, on July 29, 1995, the Russian government issued a decree on the import of SNF for the purposes of reprocessing it and returning the radioactive waste and materials obtained from reprocessing to the exporting country. This meant that foreign SNF was imported to Russia to be reprocessed in order to extract plutonium and uranium for further use and to solidify fission products in Russia.

The major condition for the SNF imports stipulated in the decree was the mandatory return to the exporting country of obtained radioactive waste and other reprocessing products that were not to be utilized in Russia. The decree’s requirements applied to all inter-governmental agreements on the import of foreign SNF to Russian reprocessing plants.

At the time, that meant foreign SNF could only be reprocessed on the condition that the radioactive waste obtained from reprocessing—and of no use to Russia—would be returned to the exporting country.

In reality, radioactive waste has never been shipped back to Hungary—either before or after the decree was enacted. Russia’s disposal of the imported radioactive waste is the only significant condition attractive to foreign countries and the major reason for their collaboration with the Agency for Atomic Energy, which until early March was known as the Ministry of Atomic Energy, or Minatom. Eastern European countries—the majority of which have already entered NATO and the European Union—could have easily sent their SNF to France or Great Britain for reprocessing, firstly, because these countries are on average closer to Great Britain and France, and, secondly, because the collaboration within the EU is always welcome from the point of view of EU policy makers.

Such multi-million dollar contracts allow for substantial economic cooperation between Eastern and Western Europe.

But both France and Great Britain—two of the only three countries in the world that reprocess SNF—comply with the mandatory return of radioactive waste from reprocessed fuel to the exporting country. And their price tags are two or three times higher than Russia’s prices.

Therefore, Hungary prefers to export its SNF to Russia on the cheap, instead sending it to Western Europe. Furthermore, Russia will hold on to the highly radioactive by-products of reprocessing for them. Hungary is therefore saving a buck and giving Russia its radioactive headache.

In a 1996 letter to the Russian government, Hungary requested a “transitional period” while the Hungarian government deliberated the construction of a radioactive waste repository on its own soil. Duriing this “transitional period” The Hungarian Minister of Industry and Trade asked the Russian government to accept Hungarian SNF and to hold on to the reprocessed radioactive waste.

‘As an Exception’
While this request was being considered in Moscow, former Chelyabinsk Region Governer Pavel Sumin was stumping for the Hungarians and offering up his Region—where Mayak, Russia’s only working SNF reprocessing facility is located—as a home for Hungary’s radioactive waste to the Russian government. An appeal he sent to the government made it plain that, without the Hungarian contract, reprocessing at Mayak would grind to a halt.

Following these events, the Russian government commissioned various research and regulatory agencies to develop a plan for Hungarian SNF imports, which would, of course, provide for not returning the radioactive by-products of reprocessing.

Three executive bodies worked on the project: Minatom, GosKomEkologia, (Russsia’s State Environmental Committee) and GosAtomNadzor, or GAN (Russsia’s Federal Nuclear and Radiation Safety Inspection).

Heads of the executive bodies signed a one-page document titled “Resolution on the Organization of SNF Imports in Limited Amounts from the Paks Nuclear Power Plant Constructed in Hungary Jointly with the USSR.”

As per the document, the agency heads “assuming the consent of the head of the Chelyabinsk Regional Administration, in good will” accepted “the Hungarian Government’s request,” and that was why it was decided that, “as an exception,” Russia would receive Hungarian SNF without returning radioactive waste and other reprocessing by-products obtained to Hungary.

This resolution was signed by: Russia’s Minister of Atomic Energy Vladimir Mikhailov, Head of the State Environmental Committee Vladimir. Danilov-Danilyan, and GAN Chairman Yury Vishnevsky.

The resolution was subsequently approved by Government Decree No. 1483-r of October 15, 1998 and signed off on by former Prime Minister Yevgeny Primakov. The government’s decree has been published in the “Compiled Laws of the Russian Federation,” but the original resolution signed by the three agency heads and ministers stipulating Hungarian SNF import procedures and terms has not.

Then, with the legal grounds for Hungarian SNF imports lined up, a train with nuclear materials and radioactive substances left Mayak for Hungary. In the opposite direction, approximately 30 tonnes of spent fuel was sent from Paks to Mayak, which was 10 percent of the entire SNF volume of the plant. The war in Yugoslavia frustrated the next train shipments and the imports had to be halted.

Appeal to Supreme Court
When the Balkan conflict was over, Russia planned on more SNF imports to Mayak from Paks. But the scenario did not unfold as Minatom had planned. Two Russian environmental NGOs—Pravosoznanie (Legal Consciousness) and Dvizheniy za Yadernuyu Bezopasnost (Nuclear Safety Movement)—had in the meantime managed to get hold of the original resolution signed by the agency heads and ministers and found that a number of the document’s resolutions were in direct conflict with legislation. Natalya Mironova, director of Nuclear Safety Movement and myself, in my capacity as director of Legal Conscience, brought suit against the validity of the October 15, 1998 decree—signed by Primakov and based on the original resolution—in the Russian Supreme Court.

The resolution violated a number of civil rights guaranteed by the Russian Constitution and laws of the Russian Federation, including: 1.) The right to a safe environment and credible information on the environmental condition as per article 42 of the Constitution; 2.) The right to health protection from environmental hazards caused by industrial or other activities as well as from accidents, catastrophes and natural disasters as per Article 11 of the Law of the Russian Soviet Socialistic Republic (RSFSR) “On Environmental Protection”; 3.) The right to a safe environmental climate with no effect on humans as per Article 8 of the Federal Law “On Sanitary and Epidemiologic Safety,” and, 4.) The right to radiation safety as per Article 22 of the federal law “On Radiation Safety.”

After a number of Supreme Court hearings on this case, it turned out that neither the government’s decree nor the resolution in question had been examined by experts, despite the fact that such expert examination is mandatory. It also became known that the most of the SNF contracted to be moved to Mayak still remained in Hungary. The court, therefore, had to decide whether or not this 370-tonne portion of SNF remaining in Hungary would be imported as per the Primakov Decree of October 15, 1998.

The NGOs based their arguments against fulfilling the decree on civil rights violations and the legislation created in regard to the resolution. As per Provision 3, Article 50 of the law “On Environmental Protection” in the former RSFSR, the import to Russia of foreign radioactive waste and materials for storage, burial, or disposal—as well as the launching by Russia of such material into space—was strictly forbidden.

Resolution conflicts with existing legislation
The resolution also conflicted with governmental decree No. 773 of July 29, 1995, which disclosed a procedure for foreign SNF imports and reprocessing at Russian plants and, in particular, detailed provisions on the mandatory return of the radioactive substances obtained during reprocessing to the exporting country.

The law “On Ecological Impact Studies” outlining the procedures of state environmental impact studies, which are mandatory because of the hazardous effects to humans caused by SNF and the environment, was also violated.

Some Russian Government representatives stated that the imports of Hungarian SNF were beyond the control of Russian law, since the liabilities on the storage of radioactive waste from reprocessed SNF in Russia were allegedly stipulated in the original 1994 international agreement between Hungary and the USSR to jointly build the Paks plant.

Government representatives alluded to a Russian Constitutional provision stipulating the priority of international law over national legislation. Government lawyers even insisted on the necessary ecological impact studies and tried to append a conclusion by Russia’s Ministry of Natural Resources to the case.

Legal ‘illiteracy’ brings down government’s case
The government’s lawyers are worthy of special mention and they honestly worked off their their fees. When it was clear to everyone that the decision about the imports of Hungarian SNF signed by the Mikhailov, Danilov-Danilyan, and Vishnevksy had been approved by Primakov in contravention of the law, one of the government lawyer decided , as it were, to play an all-or nothing game.

He claimed that Mikhailov, Danilov-Danilyan, and Vishnevksy were not quite well-versed enough in Russian legislation and that this shortcoming led them to include in the resolution’s preamble an “entirely irrelevant” formulation, which read: “The international agreement of December 28, 1966 on the joint construction of the Paks nuclear power plant and the Protocol of April 1, 1994 fail to clearly stipulate liabilities regarding the final imports of SNF in Russia without further return of radioactive waste and reprocessed products.”

This single phrase practically destroyed the government’s case, which had insisted that Russia’s liability inherited from the collapse the USSR to keep radioactive waste from reprocessed Hungarian SNF in Russia, was based in international agreements. Indeed, Mikhailov, Danilov-Danilyan, and Vishnevksy had signed the resolutions in a state of fundamental legislative illiteracy.

A letter from the United Arab Emirates Embassy in Moscow impressed the Supreme Court considerably. We had found it with the help of Greenpeace-Russia, and I tried my best to append it to our case.

Death penalty for radwaste imports helps persuade court
The letter clarified provisions of the law on radioactive materials handling in the United Arab Emirates, or UAE. In particular, the letter stated that, per the UAE’s law “On Environmental Protection,” the import of nuclear waste was punishable by death. The letter also explained the necessity of such a law: “If such a law with such a severe penalty did not exist, it would create perils not only for today’s generation but for posterity as well.” The Supreme Court agreed to include the letter in our case.

On February 26, 2002 Russia’s Supreme Court declared the Government’s Decree of October 15, 1998 numbered 1483-r invalid and non-applicable. This is how the Cheliabinsk Region prevented the import of 370 tonnes of Hungarian SNF.

The government tried to appeal the case with the Appeal Review Collegium of the Supreme Court on May 21, 2002.

Government appeals—and loses
Aside from the reasons presented at the previous hearing in the Supreme Court, government counsel added allegations of procedural irregularities during the appeal process. The court found against the appeal on Feb 26, 2002, and the decision has remained unchanged and in force ever since.

The Russian Supreme Court’s fidelity to its priciples is worthy of special note. In Russia, the outcome of most trials depends largely on money. But it is my hope that not all of Russia’s courts are like that, least of all the Supreme Court and its Collegium.

The Russian Prosecutor General’s support was also very important during the hearing. Prosecution representatives found the NGOs’ line reasonable and came to defend it.

How can the damage be repaired?
One would think the story was over and that NGO’s could have celebrated their victory. Unfortunately, this was not the case.

Two more steps should be taken to allow the legal mechanism of civil rights protection work: First, violated rights should be restored and, second, violators of the Constitution should be held accountable.

As for redressing violated rights, we should remember that the most of Hungarian SNF remains in Hungary. The Supreme Court’s decision, therefore, has hampered the imports of hundreds of tonnes of SNF under past nuclear energy legislation.

Approximately 30 tonnes of Hungarian SNF were imported into Russia, according to the chief engineer of the Mayak plant, who had participated in the court hearing, and have been reprocessed, and the radioactive waste has been discharged into the infamous lake Karachai and the Techa River Cascade.

According to the chief engineer, the return of the radioactive waste to Hungary is impossible as it cannot be extracted from the rest waste accumulated at the Mayak plant.

Aside from extraction problems, there is no proper infrastructure—no containers for radioactive waste and no special transportation for radioactive waste shipments. Additionally the Mayak plant was never conceived to deal with such issues.

As for legal accountability, a special address disclosing the violations by legal officials and singled out by the Supreme Court has been sent to Russia’s Prosecutior General. Article 247 of the Criminal Code of the Russian Federation demands criminal responsibility for the transportation, storage, disposition and utilization or other handling of radioactive, bacteriological and chemical substances and radioactive waste if these acts present a danger and can cause considerable damage to humans and the environment.

Thousands of cubic meters of radioactive waste spilled during the reprocessing of the Hungarian SNF remain in the Chelyabinsk Region. Thanks to the Supreme Court’s ruling, this radioactive waste has not been allowed to multiply.

Even minor violations of radioactive and nuclear substance handling procedures should be punished by administrative responsibility. Articles 8.31, and 9.6 KoAP RF of the Federal Law numbered 68-FZ “On Administrative Responsibility of Atomic Energy Utilization” of May 12, 2000—which went out of effect on July 1, 2002—stipulated grounds and sanctions of administrative responsibility for violatons.

Russia’s Prosecutior General, however, has found no element of offense in the activity of the governor of the Chelyabinsk Region, former Prime Minister Kasyanov and the heads of Minatom, GosKovEkologia and GosAtomNadzor, and the Prosecutor General’s office stated that in its official response.

Reviewing the case on the Hungarian SNF import as a typical example of Minatom’s international economic activities, a number of conclusions about radioactive waste handling in Russia can be drawn:

Russia is very attractive to countries using nuclear energy that are trying to solve their own radioactive waste storage problems because Russia is the only country in the world that allows foreign radioactive waste to be stored on its territory.

During its SNF-related foreign economic activities between 1991 and 2003, Minatom, as a rule, consistently violated the law of the Russian Federation.

Russia fails to guarantee its people and its future generations the right to safe environment and protection from growing radiation hazards.

Russia is facing an acute law enforcement problem. Legal responsibility is meant to restrain and prevent violations of law, which legally and socially speaking, is vital for Russian society. Thousands of wonderful laws can easily be approved, but if they are not executed, they cannot regulate public interaction. When high-ranking officials break the law and violate civil rights and easily get away with it, what are the average people to do?

In some countries there is one more kind of responsibility beyond legal control which we have not yet mentioned in this article. This is moral responsibility of top officials before their citizens. In a similar circumstances, top officials in such countries would voluntarily resign.

Russia is unique, and Russian leaders have a special way of ruling that is abolutely different from those in Germany, Norway, France, the U.S and even the United Arab Emirates.

The author of the article is the head of Cheliabinsk NGO Pravosoznanie, or Legal Conscience.

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