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Licensing of interim storage facilities: Current administration of justice

Since 30 July the Federal Office for the Safety of Nuclear Waste Management (BfE) is the competent licensing authority for the storage of nuclear fuels in interim storage facilities at the nuclear power plant sites. This task had previously been executed by the Federal Office for Radiation Protection (BfS). In the years 2002 and 2003, the BfS licensed twelve on-site interim storage facilities. Part of the residents took action against the licences.

The objective of the complaints was, among others, that a judicial review be conducted as to whether the protection against terrorist attacks had been taken into account sufficiently when the licence was granted. According to § 6 para. 2 no. 4 Atomic Energy Act, a licence may only be granted when "the necessary protection against disruptive actions or other third party intervention is guaranteed." Since the terrorist attacks of 11 September 2001, the BfS has also considered the effects of a targeted air crash onto interim storage facilities. This task was taken over by the BfE on 30 July 2016.

Survey of complaints and stages of procedure
Interim storage facility:Court Stage of procedureDecision/Result
GundremmingenVGH MünchenDecision is finalActions rejected
IsarVGH MünchenDecision is finalActions rejected
GrafenrheinfeldVGH MünchenDecision is finalActions rejected
KrümmelOVG SchleswigDecision is finalActions rejected
BrunsbüttelOVG SchleswigDecision is finalLicence for the interim storage facility withdrawn
UnterweserOVG LüneburgProcedure runningOpen

Current administration of justice

VGH München

VGH München: Gundremmingen, Isar, Grafenrheinfeld

In its judgments of 2, 9 and 12 January 2006 (ref. no. 22 A 04.40016 u.a.), the Bavarian Administrative Court (VGH Munich) came to the conclusion that the complaints against the licences for the interim storage facilities at the Gundremmingen, Isar and Grafenrheinfeld sites were unfounded. The safety of storage and in particular the necessary protection against terrorist scenarios were guaranteed.

The VGH München denied a revision. With judgment of 24 August 2006 (ref. no. 7 B 38.06 u.a.), the BVerwG rejected the complaints of several plaintiffs against this issue (see Press release dated 29.08.2006). Their constitutional complaints remained unsuccessful. The judgments of the VGH Munich are thus legally binding.

OVG Schleswig

OVG Schleswig: Krümmel, Brunsbüttel

With two judgments of 31 January 2007 (ref. no. 4 KS 2/04 and 4 KS6/04), the Schleswig-Holstein Higher Administrative Court (OVG Schleswig) dismissed complaints against the licences for the Brunsbüttel and Krümmel on-site interim storage facilities. The judgment relating to the Krümmel on-site interim storage facility has meanwhile become legally binding.

Appeal was lodged against the judgment relating to the Brunsbüttel on-site interim storage facility. In its decision of 10 April 2008 (ref. no. 7 C 39/07) the BVerwG withdrew the decision and referred the case back to the OVG Schleswig for new hearing and renewed decision. Following other proceedings in 2013, the OVG Schleswig found in favour of the plaintiff with decision of 19 June 2013 (ref. no. KS 3/08).

The OVG Schleswig did not grant the right to further appeals. The Federal Republic of Germany’s and the licencee’s complaints against the non-admission of the revision were rejected by the BVerwG with decision of 8 January 2015. With this decision the judgment of the Higher Administrative Court (OVG) Schleswig with which the storage licence for the Brunsbüttel interim storage facility is rejected, has become final.

The Schleswig-Holstein federal state nuclear inspectorate, the Ministry for Energy Turnaround, Agriculture, the Environment and Rural Spaces has issued an order under nuclear law to the operator Vattenfall, tolerating the storage of the nuclear fuel in the Brunsbüttel interim storage facility until the beginning of 2018. With this order all measures and rules for the handling and safe storage of the altogether nine CASTOR® casks containing spent fuel elements are laid down.

Main sticking points

The oral hearing held at the OVG Schleswig on 17 and 18 June 2013 dealt with the questions as to whether the possible consequences of a targeted air crash and a possible bombardment with anti-tank weapons had been examined sufficiently in the licensing procedure.

When licensing the Brunsbüttel interim storage facility, the BfS, being responible at the time, applied the rules and regulations effective at the time of licensing. In the aftermath of the 11 September 2001, it even went beyond that in terms of a targeted air crash, against the resistance of the utilities. For all interim storage facilities the targeted air crash was already considered and examined in the licensing procedures.

Due to nondisclosure agreements, the BfS could not explain in detail that the licence for the Brunsbüttel interim storage facility guaranteed the protection against disruptive actions or other third party intervention required according to the Atomic Energy Act. The presentation of the classified documents to the OVG Schleswig was ordered by the Federal Environment Ministry.

OVG Lüneburg

OVG Lüneburg: Unterweser

The OVG Lüneburg rejected the complaint of two farmers against the licence for the Unterweser on-site interim storage facility on 23 June 2010 (ref. no. 7 KS 215/03). In the opinion of the OVG Lüneburg, the BfS, being responsible at the time, has taken damage precautions against terrorist attacks to a sufficient extent when issuing the licence. In particular the protection against a targeted air crash had been considered sufficiently (see press release dated 24.6.2010 (in German)).

In these proceedings, too, the claimants lodged appeals. In support of their actions, the applicants referred to procedural irregularities and a violation of § 6 para. 2 no. 4 AtG. With judgment of 22 March 2012 (ref. no. 7 C 1.11), the BVerwG set aside the judgment under appeal and referred the complaint back to the OVG Lüneburg. Although the BVerwG considered the applicants’ claims unfounded, it opined that the OVG Lüneburg’s assessment of the protection against disruptive actions or other third party intervention contained substantive irregularities (see press release dated 22.3.2012 (in German)).

It is now up to the OVG Lüneburg to make a fresh decision about the lawfulness of the licence for the Unterweser on-site interim storage facility, after it has undertaken sufficient fact-finding.

State of 2017.01.17

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