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Securing potential sites

Regulations with respect to mining projects, e.g. for raw material extraction or the use of geothermal energy, within the framework of the Site Selection Act

In the future, economic interests such as the extraction of raw materials or the use of geothermal energy must be weighed against the public interest of finding a secure site for a repository for radioactive waste. The Federal Office for the Safety of Nuclear Waste Management (BfE) in its function as regulating authority will play an important role in this coordination of interests. In cooperation with the relevant state authorities, the BfE will assess if mining projects need to be rejected or approved.

The aim is to conserve areas that might be considered as the best possible site for the disposal of high-level radioactive waste and to protect them from changes affecting their eligibility as a repository site. The legislator defined regulations in § 21 of the Site Selection Act with the aim of securing potential sites.

Any mining activities at a depth of more than 100 metres have to be assessed in this regard. This rule is applicable to projects that were applied for after the 8 March 2017 and had not been approved by 16 May 2017. Any projects applied for after 16 May 2017 also have to be assessed. In the first few months, the approval process was suspended so that no approvals were granted on or before 15 August 2017. Exempted from this rule are approvals in connection with ongoing projects for the extraction of raw materials. These can still be approved.

No conclusions regarding the eligibility of sites

The assessments are performed individually and on a small scale. No conclusions can be drawn regarding the eligibility of an entire area as a repository site. A repository site can only be determined within the framework of the site selection procedure. The decisions regarding mining projects are a necessary compromise solution, since otherwise all activities at a depth of more than 100 metres would have to be stopped for years.

Decision process

The relevant state authority who received the application (i.e. either the mining authority or the water authority in the respective state) decides on the approval of a project envisaged by a company or public institution. However, before taking any decision, the authority needs to obtain the BfE’s consent. In the case of drillings at a depth of a maximum of 200 metres, the BfE must perform its assessment within a period of eight weeks. Consent is considered as granted if the BfE does not issue any statement within this period. Other projects are not subject to a specified period of time for assessment.

Approval or rejection of projects

In principle, the following types of rock must be present at a repository site: crystalline rock (such as granite), salt or clay. The authorities therefore start their assessment with verifying (in a first important step) if the project in question would be situated in an area presenting these types of rock. If this is not the case, approval is subject to the conventional current regulations for mining projects. If the area in question presents the relevant types of rock, the authorities have to assess if the project can be approved. To this end, the legislator defined a number of exemption criteria. The most important ones are:

  • The area meets one of the exemption criteria according to which it is not eligible as a repository site (§ 22);
  • the area does not meet one of the minimum requirements that a repository site has to fulfil (§ 23);
  • there have been similar underground activities in the vicinity of the envisaged project;
  • the rock deposits potentially eligible for the disposal of radioactive waste are of such dimensions that the envisaged project leaves a sufficiently large area for a repository unaffected.

To ensure that all mining projects involving crystalline rock, salt or clay are assessed according to consistent criteria, the BfE defined interpretation guidelines for the state authorities. In these guidelines, some of the assessment criteria laid down in § 21 of the Site Selection Act (StandAG) are explained in more detail.

Entitlement to approval

In the event that one or more of the legally defined exemptions apply, approval must be granted. To put it differently: If the assessment leads to the conclusion that the project will not affect a potential repository site, the applicant is entitled to obtain approval. There is no margin of discretion. In the case of a negative decision, the applicant is entitled to have a judicial examination of the mining or water authority’s decision. Applicants are also entitled to modify their projects since the securing regulations are not applicable to mining activities at a depth of less than 100 metres. Geothermal drillings, for example, can also be performed at a depth of less than 100 metres.

Historical background: Gorleben and the principle of the “white map”

No place in Germany shall be considered as eligible or ineligible as a repository site from the outset. This is called the principle of the “white map”, which is a key principle of the site selection procedure. This principle is also one of the lessons learned from the decade-long conflict associated with the site of Gorleben in Lower Saxony.

In 1977, the Federal Government appointed Gorleben as a repository site. A comparative, transparent selection procedure based on scientific criteria was not performed. In 2005, the legislator declared a development freeze to avoid that drillings for salt production affect the eligibility of the Gorleben salt mine.

The new Site Selection Act – that was passed in 2013 with a large political majority – radically changed the situation. Several alternatives are now supposed to be compared with the aim of selecting the best possible repository site, using an understandable procedure free of preconceived opinions as to its outcome. The Repository Commission subsequently discussed how the Gorleben site should be treated for the purposes of a nationwide selection procedure without preconceived commitments.

Just as any other place in Germany, Gorleben shall not be excluded from the search at the outset but shall be examined according to the legally defined criteria without preconceived commitments. However, the development freeze that only applied to Gorleben would have been contrary to the principle of equal treatment. As an alternative, the legislator decided to define securing regulations for the whole of Germany: These regulations shall ensure that no potential sites are affected by mining projects – not only in Gorleben, but all over Germany.

State of 2017.07.04

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