Legal and procedural challenges in reviewing the application for
a final repository for spent fuel in Sweden
Tomas Löfgren, Sweden1
Abstract
Countries with nuclear power must inevitably deal with final disposal of the nuclear waste
generated. It's reasonable that the generation that benefited electricity from nuclear power, not placing
the burden to take care of the waste on future generations. Moreover, nuclear waste is a potential threat
even to the present generations. A final repository is probably the best way to achieve nonproliferation of the radioactive waste.
According to current Swedish legislation an activity may only be authorised if the waste
generated in the activity can be disposed of. This means that before a new nuclear power may be
authorized today; there must be a final repository for the radioactive waste generated.
In most countries with nuclear power studies or programs have been conducted, more or less
successful, to find a solution on where and how to dispose of the nuclear waste. It seems that a major
obstacle is to get public acceptance for site selection. It is also a challenge to solve all the technical
issues; how to develop a completely reliable system and make it credible that it will work by
withholding all radionuclides in hundreds of thousands of years.
In March 2011 the Swedish Nuclear Fuel and Waste Management Co. (SKB) submitted license
applications for a general license to construct, possess and operate a spent nuclear fuel repository at
one municipality, and an encapsulation plant in another municipality. This is a milestone for Sweden
but perhaps also internationally. After around 30 years of research and numerous of consultations –
with municipalities, residents, landowners, environmental organisations, and government authorities –
SKB has reached the point where a concrete application has been completed and submitted to the
reviewing authorities.
The application is reviewed by the Swedish Radiation Safety Authority (SSM). The mission of the
SSM is to review and evaluate if the proposed location and the method to construct the final repository
is the best and that it can keep all radionuclides in place over a period of hundreds of thousands of
years. The application includes a specific selected site and describes fairly well the planned method for
the final repository. The review is still in progress mainly because of the need to supplement the
application in different respects.
Although the concerned municipality in Sweden has not yet taken a formal position it seems to be
general acceptance to be the host of a final repository. This makes the situation in Sweden quite
favourable compared to many other countries.
Without a doubt, to resolve the issue of where and how the radioactive waste will be disposed of
is a challenge socially and technically. To these challenges, can be added legal challenges. In this
context, legal challenge means how to apply certain basic legal requirements in practice. Based on
experience in reviewing so far, some difficulties in assessing the application on strictly based on legal
1
Tomas Löfgren work at the Swedish Radiation Safety Authority as a senior advisor in environmental law
requirements can be identified. By a problem-oriented discussion, the complexity in reviewing certain
requirements is discussed.
Background
Sweden and many other countries have come to widely accepted solutions to manage the highlevel nuclear waste in the short term. The question of how the waste must subsequently be disposed of,
however, has caused major problems. These are not only of scientific and technical nature. It has also
proved difficult to establish a system for making decisions about the disposal which is generally
considered legitimate and credible. It may be a choice of technical methods or locations for future
facilities. Especially site selection issues have to find a reasonable balance between superior national
interests and local or regional interests.
Development of the legal framework in Sweden and waste management policy
Sweden got its first legislation on radiation protection in 1941, to regulate the risks associated
with ionising radiation. Initially, the act referred mainly to medical applications, but the law was also
used in 1954 for the licensing of Sweden's first research nuclear reactor.
In 1956 the Swedish parliament decided on the first act that applied specifically to nuclear
activities. The act contained the basic requirements for construction and operation of a nuclear reactor.
The act was the forerunner to the current Act on Nuclear Activities from 1984.
In the late 1970s, the first requirements concerning the operator's responsibility to safely manage
and dispose of nuclear waste as well as ensuring the financing of any costs incurred was issued. It was
at that time also stated that an operator shall be responsible for research and development programmes
in order to safely take care of the nuclear waste generated and to safely decommission and dismantle
plants no longer to be used.
In 1977 the Parliament promulgated the ”Conditional Act”, which required a government permit
to load nuclear fuel into a new reactor. A permit could only be issued if the utility presented either an
agreement for reprocessing of the spent fuel, or a plan for the safe disposal of the highly radioactive
waste. As a result the nuclear industry initiated a joint project on nuclear fuel safety (KBS) that
included the development of disposal methods as well as a wide-ranging siting programme.
The first summary report of the KBS project (KBS-l) published in 1977 described a method for
the disposal of high activity reprocessed vitrified waste. The report formed the basis for the subsequent
Government permission in 1979-1980 to load fuel into newly established reactors. A second summary
report (KBS-2) dealing with the disposal of spent non-reprocessed nuclear fuel was issued in 1978. A
revised version of the second report, aiming at direct geological disposal (KBS-3), was published in
1983.
In 1981 the Act on Financial Measures laid down the principles for the reactor operator´s
financing of expenses for decommissioning and disposal of spent nuclear fuel and nuclear waste. The
“Conditional Act” was in 1984 replaced by the Act on Nuclear Activities. The requirement on reactor
operator´s to develop a final disposal solution continued in the framework of a research and
development programme for the safe handling and disposal of spent fuel and nuclear waste, in
accordance with the Act on Nuclear Activities.
Fundamental principles for the management of spent fuel and radioactive waste have evolved in
stages since the 1970´s, through public debate and a number of policy decisions by both Government
and Parliament. These principles are reflected in the Swedish legislation.
The most important fundamental principles of the national policy are:
1. Costs for the treatment and disposal of spent fuel and radioactive waste from nuclear activities
shall be covered by fees that licensees are required to pay.
2. The licensees are to safely dispose of spent nuclear fuel and radioactive waste from nuclear
activities.
3. The state has the ultimate responsibility for spent nuclear fuel and radioactive waste from
nuclear activities.
4. Each country is to be responsible for the spent nuclear fuel radioactive waste from nuclear
activities generated in that country.
The implementation of these principles in the Swedish legislation in practice constitutes the
implementation of the producer-pay-principle.
The Swedish policy was originally based on the assumption that reprocessing and plutonium
recycling would form attractive and desirable elements of the nuclear fuel cycle. As commercial
reactors were built in the early 1970´s, arrangements were also made to send spent fuel abroad for
reprocessing. In the late 1970´s attitudes changed, mainly due to non-proliferation concerns. Since
then, the strategy is direct disposal without reprocessing. In practice, this means spent nuclear fuel is
treated as waste, although not legally defined as waste until disposed of in a repository.
Present legal framework
Under the Act on Nuclear Activities the holder of a license for nuclear activities is primarily
responsible for the safe handling and disposal of spent fuel and radioactive waste produced in the
activity. In addition the licensee is, under the Radiation Protection Act, responsible to take all
measures and precautions necessary to prevent or counteract injury to human health and the
environment by radiation.
The Act on Financial Measures is an essential part of the Swedish nuclear waste management
system since it lays down the principles for the financing of expenses for decommissioning and
disposal of spent nuclear fuel and nuclear waste.
The Environmental Code contains basic environmental principles such as the precautionary
principle, the principle of best available technology, the polluter pays principle, the principle of
conservation of natural resources and the principle of selection of the most appropriate location where
the purpose of the activity can be achieved with minimum of damage and detriment to human health
and the environment. The Code also provides rules on environmental impact assessments.
In relation to the development of nuclear power in Sweden and otherwise to international
developments in the field of radiation protection and safety, the Act on Nuclear Activities and the
Radiation Protection Act with related ordinances and regulations has over the years been amended
with more stringent requirements.
As stated above, the holder of a license to operate a nuclear facility have prime responsibility for
maintaining safety, ensuring the safe handling and disposal of spent fuel and radioactive waste and the
safe decommissioning and dismantling of facilities in which nuclear activities no longer will be
conducted.
These general requirements are supplemented by more detailed regulations issued by the SSM
and, if needed, license conditions that the authority may issue in individual cases.
Swedish nuclear power plant licensees also have some important common obligations:
 they must in co-operation establish and carry out a research and development (R&D)
programme for the safe handling and disposal of spent fuel and nuclear waste, and
 they must in co-operation carry out cost estimates for management and disposal of spent fuel
and nuclear waste as a basis for payments to the Swedish Nuclear Waste Fund.
The four utilities operating nuclear power reactors for this purpose established the Swedish
Nuclear Fuel and Waste Management Company, SKB, to assist them in executing their
responsibilities. At present, SKB is responsible for all handling, transportation and storage of spent
fuel and nuclear waste outside the nuclear power plants and operates the Clab and SFR facilities.
SKB is also responsible for the planning and construction of facilities required for the
management of spent nuclear fuel and radioactive wastes, and for such research and development
work as is necessitated by the provision of such facilities. SKB is further responsible for co-ordination
and investigations regarding the costs associated with spent fuel, radioactive waste and future
decommissioning of the nuclear power plants and other nuclear facilities.
The adequate financial resources to ensure the fulfilment of these responsibilities and to maintain
a qualified staff are provided through disbursements from the Nuclear Waste Fund and in the case of
operational radioactive waste directly by the nuclear power utilities.
Application for a final repository
In March 2011 the SKB submitted license applications for a general license to construct, possess
and operate a KBS-3 type spent nuclear fuel repository at one municipality, and an encapsulation plant
in another municipality. The KBS-3 method, which has been developed by SKB for more than 30
years’ time, entails disposing of the spent fuel in copper canisters, surrounded by swelling bentonite
clay, at about 500 depths in crystalline basement rock.
The reviewing process in short
SKB’s applications are being evaluated in parallel by the SSM according to the Act on Nuclear
Activities and the Radiation Protection Act and by the Land and Environmental Court according to the
Environmental Code (see figure 1). During the review SSM also has a role as an expert review body to
the Land and environmental Court in the areas of radiation protection, safety and security/nonproliferation. Both SSM and the court will produce a statement with a recommendation regarding a
licensing decision and licensing conditions to the government. The government will make the final
decision after consulting the municipalities concerned by SKB’s facilities (municipal veto applies).
Figure 1
SSM´s initial licensing review phase included a broad review of all primary licensing documents
in order to make a first assessment of the quality and completeness of the application, the
identification of scientific and technical areas for in-depth review, and requests for complementary
information. The SSM’s related overall conclusion is that SKB’s reporting is sufficiently
comprehensive and of sufficient quality to justify a continuation to the main review phase. In
reviewing the license applications, SSM evaluates SKB’s choice of method and site to ascertain that
the proposed repository system is feasible and can be operated as assumed in SKB´s preliminary
safety assessment with a high degree of confidence that regulatory requirements on nuclear safety and
radiation protection can be fulfilled in the step-wise authorization process that follows a Government
licensing decision. Depending on the capacity of SKB to submit essential complementary information
that has been requested for the continued compliance evaluation in the on-going main review phase,
the aim of SSM´s current review plan is to submit a final statement to the Swedish Government in
early 2016.
Challenges in applying legal requirements – putting theory and the rule of law into hard
practice
Even for the most wise and far-sighted legislators it is difficult, if not impossible, to predict how
the future will evolve after only a few years. Moreover reality almost always turns out to be much
more complex than what the legislator anticipated when the laws were passed.
The reviewing authority must constantly bear in mind that the assessment should consider
whether the requested site and disposal concept is the best and that it can withstand stresses which
could threaten the long-term safety and radiation protection, for hundreds of thousands of years. It is
therefore important to strictly apply all legal requirements. However, it can sometimes turn out to be
difficult to apply these, at least overly ambitious.
The following text illustrates, by a problem-oriented discussion, the complexity in reviewing
certain requirements. These are: the principle of avoiding a burden on future generations, the principle
on conservation of natural resources, reporting on alternative sites and disposal methods, the
precautionary principle, the principle on best possible technic, how to handle deficiencies in an
application and the link between a final repository and possible new nuclear power reactors.
Avoid undue burdens on future generations
Sweden has ratified the Convention on the Safety of Spent Fuel Management and on the Safety of
Radioactive Waste Management from 2001. One of the purposes of the Convention is that’s the
contracting parties shall strive to avoid imposing undue burdens on future generations. This principle
can be said to embody the polluter pays principle. The polluter should take care of its waste when it
arises. That responsibility cannot be transferred to someone else or postponed.
This objective is already reflected in the Swedish Act on Nuclear Activities from 1984. Under the
Act spent fuel (not to be used again) should be placed in a final repository. The purpose of this
requirement is obvious; present and future generations should be protected against any risks associated
with nuclear waste. The legal requirement undoubtedly expresses an approach that is responsible and
strives to avoid imposing undue burdens on future generations.
What is the most reasonable course of action to avoid burden on future generations? It is
reasonable to assume that the future will bring with it new technological innovations and solutions.
But this can only be assumed, it cannot be taken for granted.
What if, in a zeal to avoid putting burdens on coming generations, a disposal method is authorised
that eventually turns out to be poor in a few decades? Waste already disposed of needs to be taken
back and managed again. A new system for final storage needs to be developed. Who is going to pay
for the development work? Who has the skills and knowledge to develop a new method? To act
promptly today might be a great disservice to future generations.
On the other hand, there is no guarantee that the future offers better solutions. The future also
means increased uncertainty about the sustainability of society due to wars, economic crises, climate
changes etc. As someone so aptly said; the bedrock is more stable than society.
Perhaps the solution can be found in the so-called “dual principle” that the predecessors to the
Swedish National Council for Nuclear Waste declared at the end of the 1980s (freely translated):
“A final repository shall be reliable but also repairable. The repository shall not have to be
monitored or by any other means remedied. On the one hand, for the protection of future generations
the current generation carries the full responsibility of taking care of nuclear waste in a reasonably safe
manner, on the other hand it should not deprive future generations their freedom of action.” But how
to translate these words into practical action?
The following example illustrates how difficult this question may be. The concept for the final
repository applied for (KBS-3) allows the waste to be t recovered even if this will require substantial
resources and efforts. Another method studied to some extent is very deep boreholes (2000 - 4000
meters depth). If the capsules can safely be brought down to this depth it will probably result in a very
high degree of radiation protection and safety. But the spent fuel and nuclear waste can never be taken
back. This concept has the potential to provide good protection for future generations but restricts their
freedom of action. Which option is legally and morally correct? This question is also connected with
the subsequent legal requirement on conservation of natural resources; is spent fuel waste or a
resource?
Conservation of natural resources
When the Swedish nuclear program was launched in the early 1970s the main focus was to
reprocess spent nuclear fuel. As mentioned, the parliament decided in the 1980s that the spent fuel be
deposed of directly without reprocessing (after intermediate storage for about 30 years). In 1999 the
Environmental Code entered into force. One of the main legal requirements in the code is the principle
of conservation of natural resources. According to this legal principle a material can be considered as
waste first after that it has been proven to be impossible to reuse or recycle.
Since reprocessing of spent fuel is legally and feasible, the policy expressed in the 1980s by
Parliament apparently is contradicts the legal requirement from the late 1990s on conservation of
natural resources. How will this contradictory legal situation be handled by the applicant and the
reviewing authority? There is no reprocessing plant in Sweden. However, there is no legal hindrance
to constructing and operating this kind of facility in Sweden. In any case it should be quite possible to
send the spent fuel abroad for reprocessing. What position should the reviewing authority take when
assessing the legal situation mentioned above? In this context it should also be mentioned that the
requirement to conserve natural resources is only to be applied if it is considered reasonable to require
this.
Is it reasonable? In any case, a requirement for reprocessing would change the entire Swedish
nuclear waste management program as it has been focused on over the last 30 years. The consequences
of such a change of the program are not easy to foresee. The SKB’s research program has since
the1980s been focused on a concept for direct disposal of the spent fuel in accordance with the policy
decided by Parliament. Is it reasonable that SKB to supplement its application by describing how the
spent fuel can be reprocessed?
This situation reveals the problem of implementing political decisions into action many years after
the decision was taken. Conditions and social values change over time. For example the view of the
protection of the environment and the concept of sustainable development has changed during the last
decades. Also, the Swedish public’s opinion on nuclear power has changed since the 1980s. At that
time it was decided that nuclear power should be phased out by 2010. In the 1990s an energy policy
agreement was reached resulting in the possibility for nuclear reactors to be operated for as long as the
technical lifetime allows.
The company Vattenfall AB applied in 2012 for permission to construct and operate one or two
new reactors. The existing reactors are expected to be in operation for another 10-20 years. In the
current situation, there are reasons to believe that Sweden will need nuclear fuel in the future as well.
In this regard, should we or should we not continue as we have before to directly dispose of spent
nuclear fuel?
Alternative sites and disposal methods
According to EIA requirements, the application must contain an EIS in order to describe possible
options in relation to the chosen site and disposal methods which the application relates to. The
purpose of reporting on alternatives is to demonstrate that no other sites or designs appear to be better
than the main proposal.
To be meaningful to compare the alternative with the main proposal, the alternative must be
developed to such a level which makes it possible to compare the crucial elements of radiation safety
in the long term. Is it reasonable to request such development work from the applicant?
Resources are limited, thus it is important that the research on the main proposal can be deepened
and that sufficient resources are devoted to it.
There is an apparent conflict between the requests regarding how far-reaching the reporting on
alternatives should be to demonstrate that the main proposal is the best solution in comparison to other
methods, and the amount of resources that can be used to develop an alternative. Overly far-reaching
requirements on developing and reporting on alternatives would mean less resources for the main
proposal.
The precautionary principle
The precautionary and best possible technology principles specified in the Environmental Code
mean that the implementer must put into practice protective measures, comply with restrictions, and
take any other precautions that are necessary in order to prevent, impede or combat damage, or
detriment to human health or the environment as a result of the activity. For the same reason, the best
possible technology must be used in connection with professional activities.
If there are indications that an activity could harm human health and the environment, the
precautionary principle shall be applied. This means that the activity may not be initiated until more
knowledge has been gained. Based on the in-depth knowledge, all necessary precautionary measures
must be taken in order to prevent, impede or combat damage, or detriment to human health or the
environment.
The submitted application does not yet contain answers to all the technical issues related to longterm safety and radiation protection. This means that there are currently uncertainties about the final
repository's potential to meet legal requirements for long-term safety and radiation protection.
Are not the criteria for applying the precautionary principle then fulfilled? What position should a
reliable and responsible authority take in this matter?
The principle of best possible technology
When determining whether or not something is the best possible technology, the environmental
benefit in relation to the costs has to be assessed. When the level of protection is reached, where
additional investments no longer give a corresponding higher level of protection of human health and
the environment, it is considered to constitute the level of best available technology.
As for the final storage facility, a major problem in assessing what is best possible technology is
that there is nothing to compare with. For some parts of the final repository system, e.g. drilling of
tunnels in the bedrock, existing technology can be used for the sake of comparison. Regarding other
parts, there is no prior experience to compare with, nor any technical prototypes whatsoever. For these
components the assessment can only be based on a theoretical description of technical solutions.
The lack of reference makes it basically impossible to determine whether or not it is the best
possible technique. How can the reviewing authority be sure that there are no better technological
solutions at a reasonable cost?
The construction work of the repository and the disposal of spent nuclear fuel will nevertheless
take place over many decades. This circumstance makes it possible to continuously develop and refine
the initial technical design. To make improvements, when this is possible, is an element of the concept
of best possible technology and also a part of optimisation, which is the basic principle of radiation
protection. On the other hand, one problem is if the initial technical design has such limitations that it
does not allow essential and gradual improvements.
Deficiencies in an application
In normal cases, applications describe the planned activity in detail, how the activity will be
conducted, its scope and the protection measures and precautions to be taken. Correspondingly,
authorisation is given with clearly defined limits and conditions on how the activity may be conducted.
Also normally an application that is not complete will be rejected
Although the basics of the concept of the final repository are well described in the application, it
lacks of necessity many technical details since these need to be developed in conjunction with the
actual construction of the facility. The critical question in this context is how many unknowns can be
accepted assuming that these will eventually be resolved?
A way to deal with this problem is to apply a step-wise review and authorisation process, which is
the case in Sweden. A licence application for the construction, possession and operation of a nuclear
facility is reviewed by SSM and the Land and Environmental Court. A licence is issued by the
Government which states that before the start of construction, the start of trial operation, the start of
routine operation, and the eventual decommissioning of the facility, approval by SSM is required. This
step-wise decision model provides for some degree of confidence by making it possible to be
reasonably assured that the next step can be acceptable to take.
There might however be a risk of getting stuck on a suboptimal solution, without having the
capability to step back and start from the beginning.
New nuclear power reactors?
Commercial nuclear power has been in existence in Sweden since the early 1970s. The nuclear
power program initially included 12 reactors at four sites. Today 10 reactors remain at three sites.
Nuclear power plants provide about 45% of total Swedish electrical power production.
The previous ban on building new nuclear power reactors was lifted in 2011. In 2012, Vattenfall
AB applied to replace up to two of the existing reactors with new ones. It is thus far unclear whether
and when new nuclear power reactors can become a reality, but it is necessary for both the industry
and government to be prepared for the probability of an expanded nuclear program and the impact that
this will have on Sweden’s future policy regarding spent fuel and radioactive waste management.
In view of the plans for expanded nuclear power, it is important to emphasise the basic
requirement under both the Act on Nuclear Activities and the Environmental Code: before an
operation may be authorised, it must be made perfectly clear how the waste generated will be taken
care of and disposed of.
Without taking a position on nuclear power, it is clear that authorisation of new nuclear power
reactors will not be given unless there is a concrete solution on final management of the nuclear waste.
A prolonged process in reviewing the application or ending up in a refusal thus also impacts on the
possible future of the new nuclear power reactors. If Sweden is to continue to use nuclear power, this
appears to be a less desirable situation with regard to the aging of current Swedish nuclear power
plants.
An approval of a final repository would clearly open the way for new nuclear power reactors. The
old and worn reactors can be replaced with modern and probably safer ones. To reject the application
would therefore lead to the continued operation of old and worn reactors. This circumstance may
however not affect the impartial and objective assessment to be made of the application for final
disposal.
Conclusions
Although the above discussion might be a bit exaggerated, it indicates difficulties from a legal
perspective when making decisions under uncertainty. On the basis of law, what is the most correct
position to take? What evidence do we need to feel confident from a legal perspective? Might an
assessment of the application only based on law risk stopping the further technical development of a
final repository?
It is quite clear that a final repository implies more considerations than those to be judged by law;
ethical, moral and political aspects also need to be taken into consideration.
Ultimately it is the Government that makes the decision. In taking this decision, the Government
may make an overall assessment based on not only legal aspects, but also political, ethical and other
societal considerations.
The authority appointed to assess safety and radiation protection must be careful to avoid being
influenced by interests other than aspects of safety and radiation protection. Resisting irrelevant
considerations is the essence of an independent and thus credible governmental authority.